Opinion
No. 13-7500
11-26-2013
KENNETH NEWKIRK, Petitioner - Appellant, v. LOUIS LERNER, Judge, Hampton VA Circuit Court, Respondent - Appellee.
Kenneth H. Newkirk, Appellant Pro Se.
UNPUBLISHED
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) 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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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