Short v. Hoke ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6922
HARVEY P. SHORT,
Plaintiff - Appellant,
v.
ADRIAN HOKE, Warden,
Defendant - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber,
Senior District Judge. (2:09-cv-01097)
Submitted: November 30, 2010 Decided: December 7, 2010
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Harvey P. Short, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harvey P. Short seeks to appeal the district court’s
order adopting the magistrate judge’s recommendation and denying
relief without prejudice on his 28 U.S.C. § 2254 (2006) petition
for failure to exhaust state court remedies. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)
(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 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 Short has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. Short’s motion to compel the Circuit Court of
Kanawha County to adjudicate his state habeas corpus petition is
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denied. 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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