Burke v. Chester , 54 F. App'x 158 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7620
PETER BURKE, SR.,
Petitioner - Appellant,
versus
DAVID CHESTER,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CA-02-657-5-BO)
Submitted: December 19, 2002 Decided: January 7, 2003
Before WILKINS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Peter Burke, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Peter Burke, Sr., a state prisoner, seeks to appeal the
district court’s order dismissing without prejudice his petition
filed under 28 U.S.C. § 2254 (2000). Burke has also filed a motion
for appointment of appellate counsel.
An appeal may not be taken from the final order in a habeas
corpus proceeding unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). When,
as here, a district court dismisses a § 2254 petition solely on
procedural grounds, a certificate of appealability will not issue
unless the petitioner can demonstrate both “(1) ‘that jurists of
reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right’ and (2) ‘that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’” Rose v. Lee, 252
F.3d 676, 684 (4th Cir.) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)), cert. denied, 122 S. Ct. 318 (2001). We have reviewed
the record and conclude for the reasons stated by the district
court that Burke has not made the requisite showing. See Burke v.
Chester, No. CA-02-657-5-BO (E.D.N.C. Sept. 23, 2002). Accordingly,
we deny a certificate of appealability and dismiss the appeal. We
deny Burke’s motion for appointment of appellate counsel. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
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