                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-7601



JAMES B. SKIPWITH,

                                            Petitioner - Appellant,

          versus


VIRGINIA DEPARTMENT OF CORRECTIONS,

                                             Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (CA-04-463-2)


Submitted:   April 28, 2005                    Decided:   May 3, 2005


Before WILLIAMS, KING, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


James B. Skipwith, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          James B. Skipwith noted this appeal from the district

court’s order dismissing his 28 U.S.C. § 2254 (2000) petition

without prejudice for failure to exhaust state remedies.    Skipwith

has filed a notice that he wishes to withdraw his appeal as to the

habeas claims, but pursue his claims under 42 U.S.C. § 1983 (2000).

Because Skipwith did not assert any claims for relief under § 1983

in the district court, this court cannot consider such claims. See

Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (noting that

issue raised for first time on appeal generally are not considered

absent   exceptional   circumstances).    Moreover,   because   his

conviction has not been invalidated or otherwise called into

question, Skipwith’s § 1983 claims are not cognizable. See Heck v.

Humphrey, 512 U.S. 477 (1994).

          In light of Skipwith’s withdrawal of his challenge to the

district court’s order, we deny a certificate of appealability, see

28 U.S.C. § 2253(c) (2000); Miller-El v. Cockrell, 537 U.S. 322,

336-38 (2003), and dismiss the appeal.      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




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