James Kearns v. Adrian Hoke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cv-00156-IMK-JSK Copies to all parties and the district court/agency. [998783564]. Mailed to: James Kearns. [11-7178]

Appeal: 11-7178

Document: 9

Date Filed: 02/08/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7178

JAMES H. KEARNS,
Petitioner - Appellant,
v.
ADRIAN HOKE, Warden,
Respondent - Appellee.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.
Irene M. Keeley,
District Judge. (1:09-cv-00156-IMK-JSK)

Submitted:

January 31, 2012

Decided:

February 8, 2012

Before GREGORY, SHEDD, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James H. Kearns, Appellant Pro Se.
Robert David Goldberg,
Assistant Attorney General, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Document: 9

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PER CURIAM:
James H. Kearns 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

(2006).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(A)

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).
relief

on

the

demonstrating
district
debatable

merits,
that

court’s
or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

U.S.

the

claims

constitutional
529

by

is

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

the

484-85.

conclude

that

We

have

Kearns

independently
has

not

made

reviewed
the

record

requisite

and

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

2

Appeal: 11-7178

before

Document: 9

Date Filed: 02/08/2012

the

and

court

argument

would

Page: 3 of 3

not

aid

the

decisional

process.
DISMISSED

3