David Lawrence Dixon v. David Ballard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999587004-2] Originating case number: 1:13-cv-07498 Copies to all parties and the district court/agency. [999646799]. Mailed to: Dixon. [15-6669]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6669

DAVID LAWRENCE DIXON,
Petitioner - Appellant,
v.
DAVID BALLARD, Warden, Mount Olive Correctional Complex,
Respondent - Appellee.

Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:13-cv-07498)

Submitted:

August 20, 2015

Decided:

August 25, 2015

Before DUNCAN, KEENAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Lawrence Dixon, Appellant Pro Se.
Scott E. Johnson,
OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David Lawrence Dixon seeks to appeal the district court’s
order adopting the recommendation of the magistrate judge and
dismissing his 28 U.S.C. § 2254 (2012) petition as successive
and the court’s order denying his motion for reconsideration. ∗
The orders are not appealable unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(A) (2012).
issue

absent

“a

of

appealability.

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

28

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2012).

of

a

When the

district court denies relief on the merits, a prisoner satisfies
this

standard

by

demonstrating

that

reasonable

jurists

would

find that the district court’s assessment of the constitutional
claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a

∗

We construe Dixon’s informal brief as a timely notice of
appeal from the underlying order. See Smith v. Barry, 502 U.S.
244, 248-49 (1992) (holding that appellate brief may serve as
notice of appeal provided it otherwise complies with rules
governing proper timing and substance).
We also note that,
although Dixon labeled his postjudgment motion as one under Fed.
R. Civ. P. 60(b), it was filed within 28 days after entry of the
underlying order. See Fed. R. Civ. P. 59(e).

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debatable claim of the denial of a constitutional right.

Slack,

529 U.S. at 484-85.
We have independently reviewed the record and conclude that
Dixon has not made the requisite showing.

Accordingly, we deny

a certificate of appealability, deny leave to proceed in forma
pauperis,

and

dismiss

the

appeal.

We

dispense

with

oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED

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