Kenneth Newkirk v. Louis Lerner , 547 F. App'x 228 ( 2013 )

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. The order is
not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (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 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 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. Accordingly,
we deny Newkirk’s motion for appointment of 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
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