                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6623


CARL WAYNE FOY,

                  Petitioner - Appellant,

             v.

DAVID BALLARD, Warden, Mount Olive Correctional Complex,

                  Respondent - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:08-cv-00042-FPS-JSK)


Submitted:    October 15, 2009              Decided:   October 19, 2009


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


George Lawson Partain, Logan, West Virginia, for Appellant. R.
Christopher   Smith,  Charleston,  West  Virginia,  Dawn  Ellen
Warfield, Deputy Attorney General, Charleston, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Carl Wayne Foy 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) (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).        A   prisoner        satisfies      this

standard   by    demonstrating          that      reasonable       jurists     would    find

that any assessment of the constitutional claims by the district

court is debatable or wrong and that any dispositive procedural

ruling by the district court is likewise debatable.                             Miller-El

v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529

U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th

Cir.   2001).        We      have   independently        reviewed       the    record    and

conclude      that      Foy     has     not       made     the     requisite     showing.

Accordingly,       we        deny   Foy's      motion      for     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 before the court and argument would

not aid the decisional process.

                                                                                DISMISSED



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