Kenneth Newkirk v. Director, Dept. of Corrections , 704 F. App'x 258 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6779
KENNETH NEWKIRK,
Petitioner - Appellant,
v.
DIRECTOR, DEPT. OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, District Judge. (3:17-cv-00229-HEH-RCY)
Submitted: October 26, 2017 Decided: November 28, 2017
Before GREGORY, Chief Judge, and MOTZ and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kenneth Newkirk, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Newkirk seeks to appeal the district court’s order dismissing his 28 U.S.C.
§ 2254 (2012) petition without prejudice for failure to comply with a prior order. 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 Newkirk has not
made the requisite showing. Accordingly, we deny Newkirk’s motion to reconsider the
order deferring action on his in forma pauperis application, deny leave to proceed in forma
pauperis, 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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