Jeffery Nally, Jr. v. Evelyn Seifert

Summarize
Check Treatment

Related Cases

                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-6301


JEFFERY ALLEN NALLY, JR.,

                Petitioner - Appellant,

          v.

WARDEN EVELYN SEIFERT,

                Respondent - Appellee,

          and

JAMES T. CAREY; LARRY ROBERTS; JAMES DAVIS, JR.; JUDGE FRED
FOX, II; SCOTT SWAN,

                Respondents.



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-00085-FPS-JES)


Submitted:   April 25, 2013                     Decided: April 30, 2013


Before AGEE and    WYNN,    Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Jeffery Allen Nally, Jr., Appellant Pro Se.        Robert David
Goldberg, Assistant Attorney General, Silas B. Taylor, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              Jeffery Allen Nally, Jr., seeks to appeal the district

court’s    order      accepting      the      recommendation          of    the    magistrate

judge    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.             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 Nally 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



                                               3
contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                               DISMISSED




                                   4