Max Kitchen v. David Ballard

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7452

MAX P. KITCHEN,

Petitioner – Appellant,

DAVID BALLARD, Warden,

Respondent – Appellee.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:10-cv-01264)

Submitted: March 29, 2012 Decided: April 5, 2012

Before KING, WYNN, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Max P. Kitchen, Appellant Pro Se. Robert David Goldberg,
Assistant Attorney General, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Max P. Kitchen 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 (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.”

28 U.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 Kitchen 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

2
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

DISMISSED