David Munday v. Warden David Ballard , 547 F. App'x 320 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7276
DAVID EUGENE MUNDAY,
Petitioner - Appellant,
v.
WARDEN DAVID BALLARD,
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. (5:12-cv-00135-FPS-DJJ)
Submitted: November 7, 2013 Decided: December 4, 2013
Before WYNN, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Eugene Munday, Appellant Pro Se. Robert David Goldberg,
Assistant Attorney General, Charleston, West Virginia, for
Appellee
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Eugene Munday seeks to appeal the district
court’s order adopting the magistrate judge’s report and
recommendation and denying relief on his 28 U.S.C. § 2254 (2006)
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) (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 Munday has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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