UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6729
HARVEY P. SHORT,
Petitioner - Appellant,
v.
WILLIAM M. FOX, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:10-cv-00002)
Submitted: August 26, 2010 Decided: September 3, 2010
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Harvey P. Short, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harvey P. Short seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief without prejudice on his 28 U.S.C. § 2254 (2006)
petition for failure to exhaust state court remedies. The order
is not appealable unless a circuit justice or judge issues a
certificate of appealability. 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 Short has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. Short’s motion to compel the state court to
adjudicate his state habeas corpus petition is denied. We
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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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