Smith v. Kuplinski, No. 05-7349 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7349 JOHNATHAN LEE X SMITH, Petitioner - Appellant, versus JOHN R. KUPLINSKI, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (CA-05-389-3-JRS) Submitted: December 22, 2005 Decided: January 3, 2006 Before WIDENER, NIEMEYER, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Johnathan Lee X Smith, Appellant Pro Se. III, OFFICE OF THE ATTORNEY GENERAL Virginia, for Appellee. Donald Eldridge Jeffrey, OF VIRGINIA, Richmond, Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Johnathan Lee X Smith, a state prisoner, seeks to appeal the district court s orders dismissing without prejudice his petition filed under 28 U.S.C. § 2254 (2000), and his motion for reconsideration, for failure to exhaust state remedies. The orders are not appealable 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 absent a substantial showing of the denial of a constitutional right. § 2253(c)(2) (2000). A prisoner satisfies this 28 U.S.C. standard by demonstrating that reasonable jurists would find that the district court s assessment of his constitutional claims is debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Smith has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, 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 - 2 -

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