Short v. Hoke, 120710 FED4, 10-6922
|Opinion Judge:||PER CURIAM:|
|Party Name:||HARVEY P. SHORT, Plaintiff - Appellant, v. ADRIAN HOKE, Warden, Defendant-Appellee.|
|Attorney:||Harvey P. Short, Appellant Pro Se.|
|Judge Panel:||Before WILKINSON, KEENAN, and WYNN, Circuit Judges.|
|Case Date:||December 07, 2010|
|Court:||United States Courts of Appeals, Court of Appeals for the Fourth Circuit|
Submitted: November 30, 2010
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)
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
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 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...
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