                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-7452


MAX P. KITCHEN,

                  Petitioner – Appellant,

          v.

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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           DISMISSED




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