Thomas Talbert v. Marvin Plumley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6522
THOMAS TALBERT,
Petitioner – Appellant,
v.
MARVIN PLUMLEY,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:14-cv-22222)
Submitted: June 23, 2016 Decided: June 29, 2016
Before MOTZ, KING, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas Talbert, Appellant Pro Se. Shannon Frederick Kiser,
OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

2
PER CURIAM:
Thomas Talbert 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. See 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
Talbert has not made the requisite showing. Accordingly, we
deny Talbert’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 of 3 --

3
materials before this court and argument would not aid the
decisional process.
DISMISSED

-- 3 of 3 --