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UNPUBLISHED PER CURIAM OPINION filed.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. . Mailed to: Richard B. McNemar HUTTONSVILLE CORRECTIONAL CENTER P. O. Box 1 Huttonsville, WV 26273-0000. [17-6547]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHARD B. MCNEMAR,
Petitioner - Appellant,
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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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.
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