Ross Jenkins v. Marvin Plumley
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [1000123077-2] Originating case number: 5:15-cv-00159-FPS-JES Copies to all parties and the district court/agency. . Mailed to: Jenkins. [17-6556]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioner - Appellant,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at
Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:15-cv-00159-FPS-JES)
Submitted: October 31, 2017
Decided: November 3, 2017
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ross Jenkins, Appellant Pro Se. Robert L. Hogan, 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Unpublished opinions are not binding precedent in this circuit.
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Ross Jenkins seeks to appeal the district court’s order accepting the recommendation
of the magistrate judge and granting in part and denying in part his 28 U.S.C. § 2254 (2012)
petition. The order is not appealable unless a circuit justice or judge issues a certificate of
appealability. 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 Jenkins has not made
the requisite showing.
Accordingly, we deny Jenkins’ motion for a certificate of
appealability 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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