Harvey Short v. Adrian Hoke, No. 10-6922 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6922 HARVEY P. SHORT, Plaintiff - Appellant, v. ADRIAN HOKE, Warden, Defendant - Appellee. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. David A. Faber, Senior District Judge. (2:09-cv-01097) Submitted: November 30, 2010 Decided: December 7, 2010 Before WILKINSON, KEENAN, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 adopting the magistrate judge s recommendation 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 judge unless certificate (2006). of a circuit justice appealability. or 28 See U.S.C. issues a § 2253(c)(1) 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). relief on the demonstrating district debatable merits, that court s or a When the district court denies prisoner reasonable assessment wrong. satisfies jurists would of Slack this the v. McDaniel, standard find that U.S. the claims constitutional 529 by is 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 the 484-85. conclude that We have Short independently has not made reviewed the record requisite and showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Short s motion to compel the Circuit Court of Kanawha County to adjudicate his state habeas corpus petition is 2 denied. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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