Wensellv.McBride

United States Court of Appeals, Fourth CircuitFeb 28, 2008
267 Fed. Appx. 278 (4th Cir. 2008)

No. 07-7196.

Submitted: January 24, 2008.

Decided: February 28, 2008.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, District Judge. (3:06-cv-00004-JPB).

James M. Wensell, Appellant Pro Se. Robert David Goldberg, Office of the Attorney General of West Virginia, Charleston, West Virginia, for Appellee.

Before KING, GREGORY, and DUNCAN, Circuit Judges.


Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.


James Michael Wensell 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 (2000) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-438, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Wensell 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 contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED.