Faircloth v. Walker

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-6432 JIMMY FAIRCLOTH, Petitioner - Appellant, versus DEAN WALKER, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (CA-01-480-5-BR) Submitted: May 29, 2003 Decided: June 4, 2003 Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges. Dismissed by unpublished per curiam opinion. Jimmy Faircloth, Appellant Pro Se. Sandra Wallace-Smith, Assistant Attorney General, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Jimmy Faircloth, a North Carolina prisoner, seeks to appeal the district court’s order accepting the report and recommendation of a magistrate judge and 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 in which the detention complained of arises out of process issued by a state court 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 for claims addressed by a district court on the merits absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). We have independently reviewed the record and conclude Faircloth has not made the requisite showing.* See Miller-El v. Cockrell, U.S. , 123 S. Ct. 1029, 1039-40 (2003). Accordingly, we deny a certificate of appealability and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). 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 * To the extent Faircloth seeks to raise issues not properly presented to the district court, we find they are waived. See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (holding claims raised for first time on appeal will not be considered absent exceptional circumstances). 2