Cedeal Harper v. David Ballard

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6226

CEDEAL T. HARPER,

Petitioner - Appellant,

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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

2
materials before this court and argument would not aid the

decisional process.

DISMISSED