Richard B. McNemar v. Marvin Plumley


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [1000087292-2]; denying Motion to proceed in forma pauperis (FRAP 24) [1000080680-2] Originating case number: 1:15-cv-00237-IMK-JES Copies to all parties and the district court/agency. [1000160910]. Mailed to: Richard B. McNemar HUTTONSVILLE CORRECTIONAL CENTER P. O. Box 1 Huttonsville, WV 26273-0000. [17-6547]

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Appeal: 17-6547 Doc: 11 Filed: 09/25/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-6547 RICHARD B. MCNEMAR, Petitioner - Appellant, v. MARVIN PLUMLEY, Warden, Respondent - Appellee. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Senior District Judge. (1:15-cv-00237-IMK-JES) Submitted: September 8, 2017 Decided: September 25, 2017 Before WILKINSON, MOTZ, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Richard B. McNemar, Appellant Pro Se. Robert L. Hogan, OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 17-6547 Doc: 11 Filed: 09/25/2017 Pg: 2 of 2 PER CURIAM: Richard B. McNemar 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. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 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.” 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 (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 McNemar has not made the requisite showing. See Davila v. Davis, 137 S. Ct. 2058, 2062-63 (2017). Accordingly, we deny his motion for 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 2

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