Thomas Talbert v. Marvin Plumley

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [999818638-2] Originating case number: 3:14-cv-22222 Copies to all parties and the district court/agency. [999873394]. Mailed to: Thomas Talbert. [16-6522]

Appeal: 16-6522

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6522

THOMAS TALBERT,
Petitioner – Appellant,
v.
MARVIN PLUMLEY,
Respondent - Appellee.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
Chief District Judge. (3:14-cv-22222)

Submitted:

June 23, 2016

Decided:

June 29, 2016

Before MOTZ, KING, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas Talbert, 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Unpublished opinions are not binding precedent in this circuit.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:
Thomas Talbert 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

certificate
(2012).

of

unless

a

circuit

appealability.

justice

See

28

or

The order is

judge

U.S.C.

issues

a

§ 2253(c)(1)(A)

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).
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

constitutional
529

U.S.

by

that

the

claims

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
Talbert has not made the requisite showing.

Accordingly, we

deny Talbert’s motion for a certificate of appealability and
dismiss the appeal.
facts

and

legal

We dispense with oral argument because the

contentions

are
2

adequately

presented

in

the

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materials

before

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this

court

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and

argument

would

not

aid

the

decisional process.

DISMISSED

3