Wendell Helfrick v. Benjamin Wright


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999717823-2]. A certificate of appealability is denied. Originating case number: 7:14-cv-00577-JPJ-RSB. Copies to all parties and the district court/agency [999961336]. Mailed to: Wendell C. Helfrick. [15-7889]

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Appeal: 15-7889 Doc: 18 Filed: 11/03/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7889 WENDELL C. HELFRICK, Petitioner - Appellant, v. BENJAMIN WRIGHT, Warden, River North Correctional Center, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James P. Jones, District Judge. (7:14-cv-00577-JPJ-RSB) Submitted: September 22, 2016 Decided: November 3,2016 Before SHEDD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Wendell C. Helfrick, Appellant Pro Se. Elizabeth Catherine Kiernan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-7889 Doc: 18 Filed: 11/03/2016 Pg: 2 of 3 PER CURIAM: Wendell C. Helfrick seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” § 2253(c)(2) (2012). 28 U.S.C. 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 (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 Helfrick has not made the requisite showing. * Accordingly, we deny * We previously remanded this case to the district court for the limited purpose of determining whether Helfrick was entitled to have his time to file an appeal reopened under Fed. R. App. P. 4(a)(6). The district court concluded that Helfrick was entitled to a reopening of the appeal period and that he timely filed a notice of appeal. 2 Appeal: 15-7889 Doc: 18 Filed: 11/03/2016 Pg: 3 of 3 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 3

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