CARL NELSON II v. DAVID BALLARD

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United States Court of Appeals, Fourth Circuit.

CARL NELSON, II, Petitioner - Appellant, v. DAVID BALLARD, Warden, Respondent - Appellee.

No. 16-6310

Decided: July 22, 2016

Before SHEDD, AGEE, and WYNN, Circuit Judges. Carl Nelson, II, Appellant Pro Se. Derek A. Knopp, Laura Young, OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellee.

Carl Nelson, II, 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 (2012) 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) (2012). 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) (2012). 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 Nelson has not made the requisite showing. Accordingly, we deny Nelson'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 materials before this court and argument would not aid the decisional process.

DISMISSED

PER CURIAM: