                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-8092


KEVIN RAY MIDDLETON,

                  Petitioner - Appellant,

             v.

DAVID BALLARD,

                  Respondent - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:07-cv-00771)


Submitted:    September 25, 2009            Decided:   December 14, 2009


Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Kevin Ray Middleton, Appellant Pro Se. R. Christopher Smith,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Dawn Ellen
Warfield, Deputy Attorney General, Charleston, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Kevin       Ray      Middleton       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 Middleton

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

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                                        DISMISSED

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