Horton v. Mitchell

                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-6153



RICHARD HORTON,

                                             Petitioner - Appellant,

          versus


DOUG MITCHELL, Superintendent,

                                              Respondent - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Graham C. Mullen, Chief
District Judge. (CA-02-127-5-1MU)


Submitted:   April 17, 2003                 Decided:   April 23, 2003


Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Richard Horton, Appellant Pro Se.   Clarence Joe DelForge, III,
OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Richard Horton seeks to appeal the district court’s order

denying relief on his 28 U.S.C. § 2254 (2000) petition.    An appeal

may not be taken to this Court from the final order in a habeas

corpus proceeding unless a circuit justice or judge issues a

certificate of appealability.    28 U.S.C. § 2253(c) (2000).   When,

as here, a district court dismisses a habeas petition 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, 534 U.S. 941 (2001).     We have independently reviewed the

record and conclude that Horton has not made the requisite showing.

Miller-El v. Cockrell,          U.S.    , 123 S. Ct. 1029 (2003).

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 before the

court and argument would not aid the decisional process.




                                                           DISMISSED


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