Kevin Judge v. Herbert Jackson, (4th Cir. 2011)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6928

KEVIN ALAN JUDGE,

Petitioner - Appellant,

v.

HERBERT JACKSON, Superintendent,

Respondent - Appellee.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad,

Jr., Chief District Judge. (3:10-cv-00440-RJC)

Submitted: October 13, 2011 Decided: October 18, 2011

Before SHEDD, AGEE, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Kevin Alan Judge, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Kevin Alan Judge seeks to appeal the district court's order denying his Fed. R. Civ. P. 60(b) motion for reconsideration of the district court's order denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28U.S.C. § 2253(c)(1)(A) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).

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 Judge has not made the requisite showing.

Accordingly, we 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.