James Burrell v. David Zook

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:16-cv-00122-HEH-RCY Copies to all parties and the district court/agency. [1000027834]. Mailed to: James Burrell. [16-7747]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-7747

JAMES DANIEL BURRELL,
Petitioner – Appellant,
v.
DAVID ZOOK, Warden,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:16-cv-00122-HEH-RCY)

Submitted:

February 16, 2017

Before GREGORY, Chief Judge, and
HAMILTON, Senior Circuit Judge.

Decided:

DUNCAN,

February 22, 2017

Circuit

Judge,

and

Dismissed by unpublished per curiam opinion.

James Daniel Burrell, Appellant Pro Se. Lauren Catherine
Campbell, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
James Daniel Burrell seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing as untimely his 28 U.S.C. § 2254 (2012) petition.
The order is not appealable unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(A) (2012).
issue

absent

“a

of

appealability.

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

28

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2012).

of

a

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
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
Burrell has not made the requisite showing.

Accordingly, we

deny a certificate of appealability and dismiss the appeal.
dispense

with

oral

argument

because

2

the

facts

and

We

legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3