                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-7835



WAYMARE BILLUPS,

                                           Petitioner - Appellant,

          versus


THEODIS BECK; BOYD BENNETT; ERNEST SUTTON;
WALTER G. EDWARDS, JR.,

                                          Respondents - Appellees.



                            No. 03-6064



WAYMARE BILLUPS,

                                            Plaintiff - Appellant,

          versus


THEODIS BECK; BOYD BENNETT; ERNEST SUTTON;
WALTER G. EDWARDS, JR.,

                                           Defendants - Appellees.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge; Malcolm J. Howard, District Judge. (CA-02-753-5-
HO, CA-02-720-5-BO)
Submitted:   May 15, 2003                Decided:   May 20, 2003


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


No. 02-7835 dismissed and No. 03-6064 affirmed as modified by
unpublished per curiam opinion.


Waymare Billups, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

     In these consolidated appeals, Waymare Billups appeals the

district court’s orders dismissing without prejudice for failure to

exhaust state remedies his 28 U.S.C. § 2254 (2000) petition and

dismissing as frivolous his 42 U.S.C. § 1983 (2000) complaint under

28 U.S.C. § 1915(e)(2)(B) (2000).         When, as in Appeal No. 02-7835,

a district court dismisses a § 2254 petition solely on procedural

grounds, a certificate of appealability will not issue unless the

petitioner can demonstrate both “(1) ‘that jurists of reason would

find it debatable whether the petition states a valid claim of the

denial of a constitutional right’ and (2) ‘that jurists of reason

would find it debatable whether the district court was correct in

its procedural ruling.’”      Rose v. Lee, 252 F.3d 676, 684 (4th Cir.)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert.

denied, 122 S. Ct. 318 (2001).       We have independently reviewed the

record    and   conclude   that   Billups   has   not   made   the   requisite

showing.    See Miller-El v. Cockrell, 123 S. Ct. 1029, 1039 (2003).

Accordingly, we deny a certificate of appealability and dismiss the

appeal.

     In No. 03-6064, we have reviewed the record and find no

reversible error.     Accordingly, we deny the motion for appointment

of counsel and affirm on the reasoning of the district court.             See

Billups v. Beck, No. CA-02-720-5-BO (E.D.N.C. filed Oct. 21, 2002;

entered Oct. 23, 2002).      Because Billups may refile his action if


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his conviction ever is overturned or called into question by the

appropriate court, we modify the judgment to be a dismissal without

prejudice.   In both cases, we deny the motion for a writ of habeas

corpus. 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.




                               No. 02-7835 - DISMISSED

                               No. 03-6064 - AFFIRMED AS MODIFIED




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