Kenneth Newkirk v. Director of Dep't of Corrections , 623 F. App'x 67 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7067
KENNETH H. NEWKIRK,
Petitioner - Appellant,
v.
DIRECTOR OF 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. (3:15-cv-00172-HEH-RCY)
Submitted: November 19, 2015 Decided: November 23, 2015
Before NIEMEYER, KING, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kenneth H. Newkirk, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth H. Newkirk seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2254 (2012) petition and
the order denying his motion for reconsideration. These orders
are 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
Newkirk has not made the requisite showing. Accordingly, we
deny Newkirk’s motion for appointment of counsel, deny a
certificate of appealability, deny leave to proceed in forma
pauperis, and dismiss the appeal. We dispense with oral
2
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
3