David Rabb v. THOMAS MCBRIDE, Warden, Mount Olive Correctional Complex

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6612
DAVID RABB,
Petitioner - Appellant,
v.
THOMAS MCBRIDE, Warden, Mount Olive Correctional Complex,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:09-cv-00159)
Submitted: November 17, 2011 Decided: November 22, 2011
Before KING, DAVIS, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Rabb, Appellant Pro Se. Dawn Ellen Warfield, Deputy
Attorney General, Robert David Goldberg, Assistant Attorney
General, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David Rabb seeks to appeal the district court’s order
accepting in part 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 Rabb has not made the requisite showing.
Accordingly, we grant Rabb’s motion to file an amended informal
brief, 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

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before the court and argument would not aid the decisional
process.
DISMISSED

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