Michael Hicks v. David Ballard, (4th Cir. 2012)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6453

MICHAEL D. HICKS,

Petitioner - Appellant,

v.

DAVID BALLARD, Warden, Mount Olive Correctional Complex,

Respondent - Appellee.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. David A. Faber,

Senior District Judge. (2:08-cv-01365)

Submitted: December 12, 2011 Decided: January 9, 2012

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael D. Hicks, Appellant Pro Se. Charles Patrick

Houdyschell, Jr., WEST VIRGINIA DIVISION OF CORRECTIONS,

Charleston, West Virginia; Dawn Ellen Warfield, Deputy Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,

Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael D. Hicks seeks to appeal the district court's order accepting 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 Hicks has not made the requisite showing.

Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, 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.