David Rabb v. Thomas McBride, (4th Cir. 2011)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6612

DAVID RABB,

Petitioner - Appellant,

v.

THOMAS MCBRIDE, Warden, Mount Olive Correctional Complex,

Respondent - Appellee.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. John T. Copenhaver,

Jr., District Judge. (2:09-cv-00159)

Submitted: November 17, 2011 Decided: November 22, 2011

Before KING, DAVIS, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Rabb, Appellant Pro Se. Dawn Ellen Warfield, Deputy

Attorney General, Robert David Goldberg, Assistant Attorney

General, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David Rabb seeks to appeal the district court's order accepting in part the recommendation of the magistrate judge and denying relief on his 28U.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)(A) (2006). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28U.S.C. § 2253(c)(2) (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 Rabb has not made the requisite showing.

Accordingly, we grant Rabb's motion to file an amended informal brief, 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.