Smith v. Ballard

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7464

DANA DECEMBER SMITH,

Petitioner - Appellant,

v.

DAVID BALLARD, Warden, Mt. Olive Correctional Complex,

Respondent – Appellee,

GEORGE CASTELLE,

Interested Party – Party in Interest.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:09-cv-00242)

Submitted: March 4, 2011 Decided: April 8, 2011

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Dana December Smith, 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Unpublished opinions are not binding precedent in this circuit.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:

Dana December Smith 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) (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 Smith has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal. We deny Smith’s motion for appointment of counsel.

We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

DISMISSED

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