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UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-7747 Doc: 10 Filed: 02/22/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-7747 JAMES DANIEL BURRELL, Petitioner – Appellant, v. DAVID ZOOK, Warden, Respondent - Appellee.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 Decided: DUNCAN, February 22, 2017 Circuit Judge, and Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7747 Doc: 10 Filed: 02/22/2017 Pg: 2 of 3 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 Appeal: 16-7747 Doc: 10 contentions are Filed: 02/22/2017 adequately Pg: 3 of 3 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3

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