UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6198
ANDREW M. JACOBS,
Petitioner – Appellant,
v.
VIRGINIA DEPARTMENT OF CORRECTIONS,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cv-00366-REP)
Submitted: May 20, 2010 Decided: May 28, 2010
Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Andrew M. Jacobs, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andrew M. Jacobs seeks to appeal the district court’s
order dismissing without prejudice his 28 U.S.C. § 2254 (2006)
petition for failure to exhaust his state court remedies, as
well as its order denying his Fed. R. Civ. P. 59(e) motion for
reconsideration. * The orders are not appealable unless a circuit
justice or judge issues a certificate of appealability. See
28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability
will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85. We have independently reviewed the record
and conclude that Jacobs has not made the requisite showing.
*
Because the record clearly establishes that exhaustion did
not occur, the orders are final. See Domino Sugar Corp. v.
Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (1993).
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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
3