UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7601
JAMES B. SKIPWITH,
Petitioner - Appellant,
versus
VIRGINIA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (CA-04-463-2)
Submitted: April 28, 2005 Decided: May 3, 2005
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James B. Skipwith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James B. Skipwith noted this appeal from the district
court’s order dismissing his 28 U.S.C. § 2254 (2000) petition
without prejudice for failure to exhaust state remedies. Skipwith
has filed a notice that he wishes to withdraw his appeal as to the
habeas claims, but pursue his claims under 42 U.S.C. § 1983 (2000).
Because Skipwith did not assert any claims for relief under § 1983
in the district court, this court cannot consider such claims. See
Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (noting that
issue raised for first time on appeal generally are not considered
absent exceptional circumstances). Moreover, because his
conviction has not been invalidated or otherwise called into
question, Skipwith’s § 1983 claims are not cognizable. See Heck v.
Humphrey, 512 U.S. 477 (1994).
In light of Skipwith’s withdrawal of his challenge to the
district court’s order, we deny a certificate of appealability, see
28 U.S.C. § 2253(c) (2000); Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003), 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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