Kevin Harbin v. Warden Broad River, (4th Cir. 2011) - Case Law - VLEX 327077111

Kevin Harbin v. Warden Broad River, (4th Cir. 2011)

CONTENT

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6483

KEVIN L. HARBIN,

Petitioner - Appellant,

v.

WARDEN BROAD RIVER CORRECTIONAL INSTITUTION,

Respondent - Appellee.

Appeal from the United States District Court for the District of

South Carolina, at Greenville. J. Michelle Childs, District

Judge. (6:09-cv-02790-JMC)

Submitted: September 29, 2011 Decided: October 4, 2011

Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Kevin L. Harbin, Appellant Pro Se. Donald John Zelenka, Deputy

Assistant Attorney General, Columbia, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Kevin L. Harbin seeks to appeal the district court's order 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. See 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 Harbin has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Harbin's motions for transcripts at the Government's expense and for appointment of appellate counsel. 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.