Donell Lee v. David Ballard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999729724-2]; denying Motion to appoint/assign counsel [999720958-2], Certificate of appealability denied. Originating case number: 2:15-cv-00007-JPB-MJA. Copies to all parties and the district court/agency. [999809185]. Mailed to: D. Lee. [15-7963]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7963

DONELL D. LEE,
Petitioner - Appellant,
v.
DAVID BALLARD, Warden, Mt. Olive Correctional Complex,
Respondent - Appellee.

Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.
John Preston Bailey,
District Judge. (2:15-cv-00007-JPB-MJA)

Submitted:

April 13, 2016

Decided:

May 2, 2016

Before WILKINSON and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Donell D. Lee, Appellant Pro Se.
Laura Young, 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Unpublished opinions are not binding precedent in this circuit.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:
Donell D. Lee seeks to appeal the district court’s order
denying

relief

The district

on

his

court

28

referred

U.S.C.
this

§ 2254

case

to

(2012)
a

pursuant to 28 U.S.C. § 636(b)(1)(B) (2012).

petition.

magistrate

judge

The magistrate

judge recommended that the petition be denied and dismissed with
prejudice and advised Lee that the failure to file timely and
specific objections to this recommendation could waive appellate
review of a district court order based upon the recommendation.
Lee filed an objection to the magistrate judge’s recommendation,
and

the

district

court

overruled

the

objection,

adopted

the

magistrate judge’s recommendation, granted Respondent’s motion
for summary judgment, and denied the § 2254 petition.
The

district

court’s

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.”
(2012).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner
reasonable

satisfies

this

jurists

would

standard
find

that

by
the

demonstrating
district

that

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).
2

When the district court

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denies

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relief

demonstrate

on

both

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procedural

that

the

grounds,

dispositive

the

prisoner

procedural

must

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.

The timely filing of specific objections to a magistrate
judge’s recommendation is necessary to preserve appellate review
of the substance of that recommendation when the parties have
been warned of the consequences of noncompliance.
Colonial

Life

&

Accident

(4th Cir.

2005);

Wells

v.

(4th Cir.

1997);

Wright

(4th Cir.

1985).

Lee

Ins.

Co.,

Shriners
v.

has

Hosp.,

Collins,
waived

416

F.3d
109

766

310,

F.3d

F.2d

appellate

Diamond v.
315-16

198,

841,

review

201

845-46
of

the

district court’s order by failing to file specific objections
after

receiving

recommendation
alleging

that

proper

concerning
the

notice

to

all

claims

other

was

procured

indictment

the

magistrate
than

judge’s

his

claim

through

false

testimony.
With respect to that claim, we have independently reviewed
the record and conclude that Lee has not made the requisite
showing

warranting

appealability.

the

issuance

Accordingly,

we

of
deny

a
a

certificate

of

certificate

of

appealability, deny leave to proceed in forma pauperis, deny

3

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Lee’s

motion

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to

We dispense

with

contentions

are

appoint
oral

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counsel,

argument

adequately

and

because

presented

in

dismiss

the

appeal.

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

DISMISSED

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