Flores v. Rushton , 55 F. App'x 165 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7636
GILBERTO FLORES,
Petitioner - Appellant,
versus
COLIE RUSHTON, Warden, McCormick Correctional
Institution; GARY MAYNARD, Director, South
Carolina Department of Corrections,
Respondents - Appellees.
No. 02-7637
GILBERTO FLORES,
Petitioner - Appellant,
versus
COLIE RUSHTON, Warden, McCormick Correctional
Institution; GARY MAYNARD, Director, South
Carolina Department of Corrections,
Respondents - Appellees.
Appeals from the United States District Court for the District of
South Carolina, at Charleston. Margaret B. Seymour, District Judge.
(CA-01-3288-2-AJ, CA-01-3289-2-AJ)
Submitted: January 16, 2003 Decided: January 27, 2003
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gilberto Flores, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Gilberto Flores, a state
prisoner, seeks to appeal the district court’s orders adopting the
magistrate judge’s recommendation construing Flores’ 42 U.S.C.
§ 2241 (2000) actions as filed under 28 U.S.C. § 2254 (2000), and
dismissing them without prejudice for failure to exhaust state
remedies. The court also denied Flores’ motions for
reconsideration. An appeal may not be taken to this court from the
final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a state court unless
a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2000). When, as here, a district court
dismisses a § 2241 petition solely on procedural grounds, a
certificate of appealability will not issue unless the petitioner
can demonstrate both “(1) that jurists of reason would find it
debatable whether the petition states a valid claim of the denial
of a constitutional right and (2) ‘that jurists of reason would
find it debatable whether the district court was correct in its
procedural ruling.’” Rose v. Lee, 252 F. 3d 676, 684 (4th Cir.)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert.
denied, 122 S.Ct. 318 (2001). We have reviewed the record and
conclude for the reasons stated by the district court that Flores
has not made the requisite showing. See Flores v. Rushton, No. CA-
01-3288-2-AJ; CA-01-3289-2-AJ (D.S.C. filed Aug. 16, 2002, entered
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Aug. 19, 2002; filed Sept. 11, 2002, entered Sept. 12, 2002; and
filed Oct. 10, 2002, entered Oct. 11, 2002). Accordingly, we deny
certificates of appealability and dismiss the appeals. 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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