Kenneth Newkirk v. Anton Bell , 500 F. App'x 261 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7793
KENNETH H. NEWKIRK,
Petitioner - Appellant,
v.
ANTON BELL; COMMONWEALTH,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:12-cv-00179-HEH)
Submitted: December 13, 2012 Decided: December 19, 2012
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kenneth H. Newkirk, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth H. Newkirk appeals the district court’s order
dismissing without prejudice his 28 U.S.C. § 2254 (2006)
petition for failure to comply with the court’s order. The
order is not appealable unless a circuit justice or judge issues
a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A)
(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 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 v. McDaniel, 529 U.S. 473, 484-85
(2000).
We have independently reviewed the record and conclude
that Newkirk 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
this court and argument would not aid the decisional process.
DISMISSED
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