Larry McFarland v. Kimberly Runion , 474 F. App'x 307 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6425
LARRY MCFARLAND,
Petitioner - Appellant,
v.
KIMBERLY RUNION, Mrs., Facility Director,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:11-cv-00206-CMH-TRJ)
Submitted: July 11, 2012 Decided: July 31, 2012
Before GREGORY, DAVIS, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Larry McFarland, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry McFarland seeks to appeal the district court’s
order dismissing his 28 U.S.C. § 2254 (2006) petition for
failure to exhaust his state court remedies and has filed a
motion to proceed in forma pauperis. 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 McFarland has not made the requisite showing. Accordingly,
we deny McFarland’s motion to proceed in forma pauperis, deny a
certificate of appealability and dismiss the appeal. We
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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
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