                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-7030


MILTON ORRETT COLE,

                  Petitioner - Appellant,

             v.

GENE M. JOHNSON,      Director   of   the   Virginia   Department   of
Corrections,

                  Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.       Walter D. Kelley, Jr.,
District Judge. (2:07-cv-00489-WDK-JEB)


Submitted:    November 12, 2008             Decided:    December 11, 2008


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Dismissed in part; vacated and remanded in part by unpublished
per curiam opinion.


Rion O’Neal Latimore, Cincinnati, Ohio, for Appellant. Robert H.
Anderson, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Milton      Orrett       Cole     seeks     to       appeal       the    district

court’s      order    accepting        the     recommendation         of     the       magistrate

judge       and    denying      relief     on    his     28     U.S.C.       §    2254       (2000)

petition. *        The order is not appealable unless a circuit justice

or   judge        issues   a    certificate         of   appealability.                28    U.S.C.

§ 2253(c)(1) (2000).              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)           (2000).          A

prisoner          satisfies       this        standard        by     demonstrating               that

reasonable         jurists      would     find      that      any     assessment            of    the

constitutional         claims     by     the    district        court    is      debatable         or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable.                    Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

               We have independently reviewed the record and conclude

that Cole has not made the requisite showing with respect to his

§ 2254 claims alleging ineffective assistance of counsel.                                        With

regard to Cole’s challenge to his continuing detention by the

Department of Homeland Security, we vacate the district court’s

        *
       Cole initially filed his habeas petition under 28 U.S.C.
§ 2241 (2000). However, it was construed by the district court
as a § 2254 petition.



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order and remand so that this claim may be properly considered

under 28 U.S.C. § 2241 (2000) and in light of relevant precedent

of the United States Supreme Court.          See Clark v. Martinez, 543

U.S. 371 (2005); Demore v. Kim, 538 U.S. 510 (2003); Zadvydas v.

Davis, 533 U.S. 678 (2001).

            Accordingly,   we   deny   a   certificate   of   appealability

and dismiss the appeal in part, and vacate and remand in part

for further proceedings.        We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before   the   court    and    argument   would   not   aid   the

decisional process.

                                                      DISMISSED IN PART;
                                            VACATED AND REMANDED IN PART




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