                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-7464


DANA DECEMBER SMITH,

                Petitioner - Appellant,

          v.

DAVID BALLARD, Warden, Mt. Olive Correctional Complex,

                Respondent – Appellee,

GEORGE CASTELLE,

                Interested Party – Party in Interest.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:09-cv-00242)


Submitted:   March 4, 2011                 Decided:     April 8, 2011


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Dana December Smith, 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Unpublished opinions are not binding precedent in this circuit.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:

            Dana     December       Smith    seeks     to    appeal        the    district

court’s     order        adopting    the    magistrate           judge’s     report         and

recommendation 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.                         See 28 U.S.C.

§ 2253(c)(1) (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    Smith    has    not    made   the     requisite       showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.        We deny Smith’s motion for appointment of counsel.

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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