Rabb v. McBride, No. 2:2009cv00159 - Document 60 (S.D.W. Va. 2011)

Court Description: JUDGMENT ORDER in accordance with the 59 Memorandum Opinion and Order, the petition filed pursuant to 28:2254 is denied; this action is dismissed and stricken from the docket; denying a certificate of appealability; pursuant to Rule 11, Rules Governing 2254 Cases, movant may not appeal the denial but may seek a certificate from the court of appeals under FRAP 22. Signed by Judge John T. Copenhaver, Jr. on 3/31/2011. (cc: pro se petitioner; counsel of record; Magistrate Judge Stanley ) (ras)

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Rabb v. McBride Doc. 60 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON DAVID RABB, Petitioner v. CIVIL ACTION NO. 2:09-0159 DAVID BALLARD, Warden, Mount Olive Correctional Complex, Respondent JUDGMENT ORDER In accordance with the memorandum opinion and order entered this same day, it is ORDERED and ADJUDGED that the petition filed pursuant to 28 U.S.C. § 2254 be, and it hereby is, denied. It is further ORDERED that this action be, and it hereby is, dismissed and stricken from the docket. The court has considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253(c). A certificate will not be granted unless there is “a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this court is debatable or wrong and that any dispositive Dockets.Justia.com procedural ruling 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). The court concludes that the governing standard is not satisfied in this instance. Accordingly, the court ORDERS that a certificate of appealability be, and it hereby is, denied. Pursuant to Rule 11, Rules Governing § 2254 Cases, movant may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. The Clerk is directed to forward certified copies of this order to the petitioner, all counsel of record, and the United States Magistrate Judge. DATED: March 31, 2011 John T. Copenhaver, Jr. United States District Judge

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