Ben-Stone v. Hinkle

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6437
MAHMOUD A. BEN-STONE,
Petitioner - Appellant,
v.
GEORGE HINKLE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cv-00043-JCC-IDD)
Submitted: July 22, 2010 Decided: August 2, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Mahmoud A. Ben-Stone, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mahmoud A. Ben-Stone seeks to appeal the district
court’s order dismissing his 28 U.S.C. § 2254 (2006) petition
without prejudice 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 Ben-Stone has not made the requisite showing.
Accordingly, we 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
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before the court and argument would not aid the decisional
process.
DISMISSED
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