Pipes v. Ballard , 396 F. App'x 19 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6771
JAMES FRANKLIN PIPES,
Petitioner – Appellant,
v.
DAVID BALLARD, Warden,
Respondent – Appellee,
and
THOMAS L. MCBRIDE, Warden,
Respondent.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:05-cv-00058-REM-JSK)
Submitted: August 30, 2010 Decided: September 16, 2010
Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Franklin Pipes, Appellant Pro Se. R. Christopher Smith,
Dawn Ellen Warfield, Deputy Attorney General, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Franklin Pipes seeks to appeal the district
court’s orders adopting the recommendation of the magistrate
judge and denying relief on his 28 U.S.C. § 2254 (2006)
petition. The orders are not appealable unless a circuit
justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (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). 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 Pipes has not made the requisite showing.
Accordingly, we deny a certificate of appealability, deny
Pipes’s motion for appointment of counsel, and dismiss the
appeal.
2
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED
3