Carl Lockhart v. David Ballard , 548 F. App'x 94 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7567
CARL E. LOCKHART,
Petitioner - Appellant,
v.
DAVID BALLARD, Warden, Mt. Olive Correctional Complex,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. John T. Copenhaver,
Jr., District Judge. (6:12-cv-04266)
Submitted: December 17, 2013 Decided: December 20, 2013
Before KING, GREGORY, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Carl E. Lockhart, Appellant Pro Se. Christopher S. Dodrill,
OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carl E. Lockhart seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying as untimely his 28 U.S.C. § 2254 (2006) 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)
(2006). 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) (2006). 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 Lockhart has not made the requisite showing. Accordingly,
we deny 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
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presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
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