Linda Byrnes v. S. Butler

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999797129-2], [999833514-2]. A certificate of appealability is denied. Originating case number: 1:12-cv-07353. Copies to all parties and the district court/agency [999929862]. Mailed to: Linda Lee Byrnes. [16-6442]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6442

LINDA LEE BYRNES,
Petitioner – Appellant,
v.
S. BUTLER, 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-07353)

Submitted:

September 13, 2016

Decided:

September 15, 2016

Before TRAXLER, AGEE, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Linda Lee Byrnes, Appellant Pro Se. Stephen Michael Horn,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Linda Lee Byrnes seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge, construing
her 28 U.S.C. § 2241 (2012) petition as a motion under 28 U.S.C.
§ 2255

(2012),

jurisdiction. *
justice

or

and

dismissing

that

motion

for

lack

of

The order is not appealable unless a circuit

judge

issues

a

certificate

U.S.C. § 2253(c)(1)(B) (2012).

of

appealability.

28

A certificate of appealability

will not issue absent “a substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(2) (2012).

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
*

To the extent that Byrnes seeks to challenge the district
court’s determination that her claim regarding eligibility for
early release under 18 U.S.C. § 3621 (2012) was without merit,
we note that 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. United States v. Midgette, 478 F.3d 616, 621-22
(4th Cir. 2007).
Byrnes has waived review of the district
court’s ruling on that issue by failing to object to the
magistrate judge’s recommendation.

2

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procedural ruling is debatable, and that the motion 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
Byrnes 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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