                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-7706


BRIAN E. ASHCRAFT,

                Petitioner - Appellant,

          v.

DAVID BALLARD, Warden,

                Respondent – Appellee.


Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.      John Preston Bailey,
Chief District Judge. (2:10-cv-00011-JPB-DJJ)


Submitted:   May 26, 2011                 Decided:   May 31, 2011


Before KING, SHEDD, and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Brian E. Ashcraft, Appellant Pro Se. Silas B. Taylor, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Brian E. Ashcraft seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

dismissing as untimely his 28 U.S.C. § 2254 (2006) petition.

The order is not appealable unless a circuit justice or judge

issues a certificate of appealability.                28 U.S.C. § 2253(c)(1)

(2006).     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)(A)        (2006).       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    Ashcraft    has    not   made    the    requisite         showing.

Accordingly,       we   deny    the     motion      for     a        certificate       of

appealability and the motion for appeal counsel, and dismiss the

appeal.     We dispense with oral argument because the facts and

legal   contentions      are   adequately       presented       in    the    materials

                                         2
before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                                   DISMISSED




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