UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6345
ARTHUR LEE GOODEN, II,
Petitioner - Appellant,
versus
D. A. BRAXTON,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (CA-04-82-7)
Submitted: July 29, 2004 Decided: August 4, 2004
Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Arthur Lee Gooden, II, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Arthur Lee Gooden seeks to appeal the district court’s
order dismissing without prejudice for failure to exhaust state
court remedies his petition filed under 28 U.S.C. § 2254 (2000).*
We have independently reviewed the record and conclude that Gooden
has not made a substantial showing of the denial of a
constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 336
(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
*
Because there is no dispute in the record that exhaustion did
not occur, this order is appealable. See Domino Sugar Corp. v.
Sugar Workers Local Union 392, 10 F.3d 1064 (1993).
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