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    David Munday v. Warden David Ballard, 4th Cir. (2013)

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    1) David Eugene Munday seeks to appeal a district court order that adopted a magistrate judge's report and denied Munday's habeas corpus petition. 2) The order is not appealable unless a certificate of appealability is issued, which requires a substantial showing that a constitutional right was denied. 3) The court independently reviewed the record and concluded that Munday did not make the requisite showing, so it denied a certificate of appealability and dismissed the appeal.

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    David Munday v. Warden David Ballard, 4th Cir. (2013)

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    1) David Eugene Munday seeks to appeal a district court order that adopted a magistrate judge's report and denied Munday's habeas corpus petition. 2) The order is not appealable unless a certificate of appealability is issued, which requires a substantial showing that a constitutional right was denied. 3) The court independently reviewed the record and concluded that Munday did not make the requisite showing, so it denied a certificate of appealability and dismissed the appeal.

    Original Description:

    Filed: 2013-12-04 Precedential Status: Non-Precedential Docket: 13-7276

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    1) David Eugene Munday seeks to appeal a district court order that adopted a magistrate judge's report and denied Munday's habeas corpus petition. 2) The order is not appealable unless a certificate of appealability is issued, which requires a substantial showing that a constitutional right was denied. 3) The court independently reviewed the record and concluded that Munday did not make the requisite showing, so it denied a certificate of appealability and dismissed the appeal.

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    6 views3 pages

    David Munday v. Warden David Ballard, 4th Cir. (2013)

    Uploaded by

    Scribd Government Docs
    1) David Eugene Munday seeks to appeal a district court order that adopted a magistrate judge's report and denied Munday's habeas corpus petition. 2) The order is not appealable unless a certificate of appealability is issued, which requires a substantial showing that a constitutional right was denied. 3) The court independently reviewed the record and concluded that Munday did not make the requisite showing, so it denied a certificate of appealability and dismissed the appeal.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 13-7276

    DAVID EUGENE MUNDAY,


    Petitioner - Appellant,
    v.
    WARDEN DAVID BALLARD,
    Respondent - Appellee.

    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-00135-FPS-DJJ)

    Submitted:

    November 7, 2013

    Decided:

    December 4, 2013

    Before WYNN, FLOYD, and THACKER, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    David Eugene Munday, 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:
    David
    courts

    Eugene

    order

    Munday

    adopting

    the

    seeks

    to

    appeal

    magistrate

    the

    judges

    district

    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.


    2253(c)(1)(A) (2006).
    issue

    absent

    A certificate of appealability will not

    substantial

    constitutional right.

    See 28 U.S.C.

    showing

    of

    the

    denial

    28 U.S.C. 2253(c)(2) (2006).

    of

    When the

    district court denies relief on the merits, a prisoner satisfies


    this

    standard

    by

    demonstrating

    that

    reasonable

    jurists

    would

    find that the district courts assessment of the constitutional


    claims is debatable or wrong.

    Slack v. McDaniel, 529 U.S. 473,

    484

    Cockrell,

    (2000);

    (2003).

    see

    Miller-El

    v.

    537

    U.S.

    322,

    336-38

    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 Munday has not made the requisite showing.

    Accordingly, we

    deny a certificate of appealability and dismiss the appeal.


    dispense

    with

    oral

    argument

    because

    the

    facts

    and

    We

    legal

    contentions

    are

    adequately

    presented

    in

    the

    materials

    before

    this court and argument would not aid the decisional process.

    DISMISSED

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