                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-6198


ANDREW M. JACOBS,

                Petitioner – Appellant,

          v.

VIRGINIA DEPARTMENT OF CORRECTIONS,

                Respondent – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Robert E. Payne, Senior
District Judge. (3:09-cv-00366-REP)


Submitted:   May 20, 2010                    Decided:   May 28, 2010


Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Andrew M. Jacobs, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

               Andrew M. Jacobs seeks to appeal the district court’s

order dismissing without prejudice his 28 U.S.C. § 2254 (2006)

petition for failure to exhaust his state court remedies, as

well as its order denying his Fed. R. Civ. P. 59(e) motion for

reconsideration. *         The orders are not appealable unless a circuit

justice or judge issues a certificate of appealability.                         See

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 Jacobs has not made the requisite showing.

       *
       Because the record clearly establishes that exhaustion did
not occur, the orders are final.      See Domino Sugar Corp. v.
Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (1993).



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Accordingly, we deny a certificate of appealability 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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