                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-6729


HARVEY P. SHORT,

                Petitioner - Appellant,

          v.

WILLIAM M. FOX, Warden,

                Respondent - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:10-cv-00002)


Submitted:   August 26, 2010                 Decided:   September 3, 2010


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Harvey P. Short, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

              Harvey P. Short seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge 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.               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

ruling is debatable, and that the petition states a debatable

claim of the denial of a constitutional right.                            Slack, 529 U.S.

at    484-85.         We   have    independently          reviewed        the     record    and

conclude      that      Short     has    not       made      the    requisite       showing.

Accordingly, we deny a certificate of appealability and dismiss

the    appeal.         Short’s     motion      to    compel        the    state    court     to

adjudicate      his     state     habeas    corpus        petition        is    denied.      We

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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




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