John Smith v. Harold Clarke

                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 15-6375


JOHN KEITH SMITH,

                        Petitioner – Appellant,

          v.

HAROLD W. CLARKE, Director, VA Department of Corrections,

                        Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:13-cv-00856-HEH-RCY)


Submitted:   July 23, 2015                  Decided:   July 27, 2015


Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


John Keith Smith, Appellant Pro Se. David Michael Uberman, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     John Keith Smith seeks to appeal the district court’s order

accepting the recommendation of the magistrate judge and denying

relief on his 28 U.S.C. § 2254 (2012) 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) (2012). 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)

(2012).   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

Smith 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



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in the materials before this court and argument would not aid the

decisional process.



                                                        DISMISSED




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