Harold L. Cyrus v. David Ballard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [999681197-2]; denying Motion to proceed in forma pauperis (FRAP 24) [999696895-2] Originating case number: 1:12-cv-09341 Copies to all parties and the district court/agency. [999806797]. Mailed to: Harold L. Cyrus MOUNT OLIVE CORRECTIONAL COMPLEX 1 Mountainside Way Mt. Olive, WV 25185-0000 Shannon Frederick Kiser. [15-7648]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7648

HAROLD L. CYRUS,
Petitioner - Appellant,
v.
DAVID BALLARD, Warden,
Respondent - Appellee.

Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:12-cv-09341)

Submitted:

March 31, 2016

Decided:

April 28, 2016

Before WILKINSON and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Harold L. Cyrus, Appellant Pro Se.
Shannon Frederick Kiser,
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Unpublished opinions are not binding precedent in this circuit.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:
Harold L. Cyrus seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his 28 U.S.C. § 2254 (2012) petition.
not

appealable

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

or

The order is

judge

issues

a

28 U.S.C. § 2253(c)(1)(A) (2012).

appealability

will

not

issue

absent

“a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012).
relief

on

the

demonstrating
district

merits,
that

court’s

debatable

or

a

prisoner

reasonable

assessment

wrong.

When the district court denies

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

U.S.

the

claims

constitutional
529

by

is

473,

484

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
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 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
Cyrus has not made the requisite showing.

Accordingly, we deny

Cyrus’ motion for 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
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adequately

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presented

in

the

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materials

before

this

court

and

argument would not aid the decisional process.
DISMISSED

3