Burdette v. McBride

Summarize
Check Treatment

Related Cases

                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-6892



KEITH WAYNE BURDETTE,

                                              Petitioner - Appellant,


           versus


THOMAS    MCBRIDE,    Warden,     Mount     Olive
Correctional Complex,

                                               Respondent - Appellee,


     and


JAMES    COLEMAN,    Warden,     Mount      Olive
Correctional Complex,

                                                            Defendant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CA-01-1232-2)


Submitted:   October 20, 2004             Decided:   November 16, 2004


Before LUTTIG, KING, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.
Keith Wayne Burdette, Appellant Pro Se. Darrell V. McGraw, Jr.,
Dawn Ellen Warfield, Allen Hayes Loughry, II, Jon Rufus Blevins,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

               Keith Wayne Burdette, a state prisoner, seeks to appeal

the district court’s order adopting the report and recommendation

of the magistrate judge and dismissing his petition filed under 28

U.S.C. § 2254 (2000).         The order is not appealable unless a circuit

justice or judge issues a certificate of appealability.                28 U.S.C.

§ 2253(c)(1) (2000). 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) (2000).         A prisoner satisfies this

standard by demonstrating that reasonable jurists would find that

his constitutional claims are debatable and that any dispositive

procedural rulings by the district court are also debatable or

wrong.     See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d

676, 683 (4th Cir. 2001).              We have independently reviewed the

record and conclude that Burdette 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.



                                                                   DISMISSED