Byrd v. Commonwealth of VA , 114 F. App'x 117 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7154
STEVEN BYRD,
Petitioner - Appellant,
versus
COMMONWEALTH OF VIRGINIA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CA-04-95)
Submitted: November 10, 2004 Decided: December 3, 2004
Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Steven Byrd, Appellant Pro Se. John H. McLees, Jr., OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Steven Byrd, a state prisoner, seeks to appeal the
district court’s order dismissing without prejudice his petition
filed under 28 U.S.C. § 2254 (2000) for failure to exhaust state
remedies on all claims. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner
satisfies this standard by demonstrating that reasonable jurists
would find that his constitutional claims are debatable and that
any dispositive procedural rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed
the record and conclude that Byrd has not made the requisite
showing. Accordingly, we deny a certificate of appealability and
dismiss the appeal. We also deny Byrd’s motion for trial
transcripts at the government’s expense. 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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