Donald Wayne Shipe v. TRACY S. RAY, Warden of Red Onion State Prison

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7824
DONALD WAYNE SHIPE,
Petitioner - Appellant,
v.
TRACY S. RAY, Warden of Red Onion State Prison,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:09-cv-00454-SGW-mfu)
Submitted: May 19, 2016 Decided: June 8, 2016
Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Donald Wayne Shipe, Appellant Pro Se. Donald Eldridge Jeffrey,
III, Assistant Attorney General, Richmond, Virginia; Erin Marie
Harrigan Kulpa, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Donald Wayne Shipe seeks to appeal the district court’s
order denying Shipe’s Fed. R. Civ. P. 60(b) motion for relief
from the court’s prior judgment denying relief on his 28 U.S.C.
§ 2254 (2012) petition. This order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(B) (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 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 motion 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
Shipe has not made the requisite showing. Accordingly we deny
leave to proceed in forma pauperis, deny a certificate of
appealability, and we dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately

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

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