UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7835
WAYMARE BILLUPS,
Petitioner - Appellant,
versus
THEODIS BECK; BOYD BENNETT; ERNEST SUTTON;
WALTER G. EDWARDS, JR.,
Respondents - Appellees.
No. 03-6064
WAYMARE BILLUPS,
Plaintiff - Appellant,
versus
THEODIS BECK; BOYD BENNETT; ERNEST SUTTON;
WALTER G. EDWARDS, JR.,
Defendants - Appellees.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge; Malcolm J. Howard, District Judge. (CA-02-753-5-
HO, CA-02-720-5-BO)
Submitted: May 15, 2003 Decided: May 20, 2003
Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
No. 02-7835 dismissed and No. 03-6064 affirmed as modified by
unpublished per curiam opinion.
Waymare Billups, 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Unpublished opinions are not binding precedent in this circuit.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, Waymare Billups appeals the
district court’s orders dismissing without prejudice for failure to
exhaust state remedies his 28 U.S.C. § 2254 (2000) petition and
dismissing as frivolous his 42 U.S.C. § 1983 (2000) complaint under
28 U.S.C. § 1915(e)(2)(B) (2000). When, as in Appeal No. 02-7835,
a district court dismisses a § 2254 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 independently reviewed the
record and conclude that Billups has not made the requisite
showing. See Miller-El v. Cockrell, 123 S. Ct. 1029, 1039 (2003).
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
In No. 03-6064, we have reviewed the record and find no
reversible error. Accordingly, we deny the motion for appointment
of counsel and affirm on the reasoning of the district court. See
Billups v. Beck, No. CA-02-720-5-BO (E.D.N.C. filed Oct. 21, 2002;
entered Oct. 23, 2002). Because Billups may refile his action if
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his conviction ever is overturned or called into question by the
appropriate court, we modify the judgment to be a dismissal without
prejudice. In both cases, we deny the motion for a writ of habeas
corpus. 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.
No. 02-7835 - DISMISSED
No. 03-6064 - AFFIRMED AS MODIFIED
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