Cedeal Harper v. David Ballard

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6226
CEDEAL T. HARPER,
Petitioner - Appellant,
v.
DAVID BALLARD, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:12-cv-00653)
Submitted: May 30, 2013 Decided: June 5, 2013
Before SHEDD, DIAZ, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Cedeal T. Harper, 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Unpublished opinions are not binding precedent in this circuit.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:
Cedeal T. Harper seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing without prejudice Harper’s 28 U.S.C. § 2254 (2006)
petition for failure to exhaust. 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 Harper has not made the requisite showing. Accordingly, we
deny Harper’s 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
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materials before this court and argument would not aid the
decisional process.
DISMISSED
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