                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-7432


FRANKLIN CHARLES SMITH,

                Petitioner - Appellant,

          v.

HAROLD W. CLARKE,     Director    of   Virginia   Department   of
Corrections,

                Respondent – Appellee,

          and

KENNETH STOLLE, Virginia Beach Sheriff,

                Respondent.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:13-cv-00479-RAJ-LRL)


Submitted:   December 21, 2015              Decided:   January 5, 2016


Before MOTZ and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Dismissed by unpublished per curiam opinion.


Franklin Charles Smith, Appellant Pro Se. Steven Andrew Witmer,
Senior Assistant Attorney General, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Franklin Charles Smith 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 (2012) 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)

(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

Smith has not made the requisite showing.                    Accordingly, we deny

Smith’s motion for a certificate of appealability and dismiss

the   appeal.          Smith’s    motion    for    appointment       of     counsel    is

denied.        We dispense with oral argument because the facts and

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legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.



                                                                    DISMISSED




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