Kenneth Newkirk v. Louis Lerner, No. 13-7500 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7500 KENNETH NEWKIRK, Petitioner - Appellant, v. LOUIS LERNER, Judge, Hampton VA Circuit Court, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:13-cv-00570-HEH) Submitted: November 21, 2013 Decided: November 26, 2013 Before KING, DUNCAN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Kenneth H. Newkirk, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth Newkirk seeks to appeal the district court s order dismissing his 28 U.S.C. § 2254 (2006) petition without prejudice for failure to exhaust state remedies. not appealable unless a circuit certificate of appealability. A certificate of justice or The order is judge issues a 28 U.S.C. § 2253(c)(1)(A) (2006). 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 procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a constitutional right. debatable claim of the denial of a Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). We have independently reviewed the record and conclude that Newkirk has not made the requisite showing. we deny Newkirk s motion for appointment of Accordingly, counsel, 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 this court and argument would not aid the decisional process. DISMISSED 2