Donald Shipe v. Tracy Ray

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999718533-2] Originating case number: 7:09-cv-00454-SGW-mfu Copies to all parties and the district court/agency. [999846613]. Mailed to: Donald Shipe. [15-7824]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7824

DONALD WAYNE SHIPE,
Petitioner - Appellant,
v.
TRACY S. RAY, Warden of Red Onion State Prison,
Respondent - Appellee.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:09-cv-00454-SGW-mfu)

Submitted:

May 19, 2016

Before NIEMEYER
Circuit Judge.

and

MOTZ,

Decided:

Circuit

Judges,

and

June 8, 2016

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Donald Wayne Shipe, Appellant Pro Se. Donald Eldridge Jeffrey,
III, Assistant Attorney General, Richmond, Virginia; Erin Marie
Harrigan
Kulpa,
Assistant
United
States
Attorney,
Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Donald Wayne Shipe seeks to appeal the district court’s
order denying Shipe’s Fed. R. Civ. P. 60(b) motion for relief
from the court’s prior judgment denying relief on his 28 U.S.C.
§ 2254 (2012) petition.

This order is not appealable unless a

circuit justice or judge issues a certificate of appealability.
28

U.S.C.

§ 2253(c)(1)(B)

(2012).

A

certificate

of

appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2012).
prisoner

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a
satisfies

this

standard

by

demonstrating

that

reasonable jurists would find the district court’s assessment of
the

constitutional

claims

is

debatable

or

wrong.

Slack

v.

McDaniel, 529 U.S. 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

motion

states

a

constitutional right.

debatable

claim

of

the

denial

of

a

Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude that
Shipe has not made the requisite showing.
leave

to

proceed

in

forma

pauperis,

Accordingly we deny

deny

appealability, and we dismiss the appeal.

a

certificate

of

We dispense with oral

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

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