                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 13-7500


KENNETH NEWKIRK,

                Petitioner - Appellant,

          v.

LOUIS LERNER, Judge, Hampton VA Circuit Court,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:13-cv-00570-HEH)


Submitted:   November 21, 2013            Decided:   November 26, 2013


Before KING, DUNCAN, and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Kenneth H. Newkirk, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

             Kenneth Newkirk seeks to appeal the district court’s

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

prejudice for failure to exhaust state remedies.                         The order is

not    appealable    unless      a   circuit     justice       or    judge     issues     a

certificate of appealability.              28 U.S.C. § 2253(c)(1)(A) (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 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 v. McDaniel, 529 U.S. 473, 484-85

(2000).

             We have independently reviewed the record and conclude

that Newkirk has not made the requisite showing.                            Accordingly,

we    deny   Newkirk’s    motion     for   appointment        of     counsel,     deny    a

certificate of appealability, deny leave to proceed in forma

pauperis,     and    dismiss     the   appeal.          We    dispense       with     oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                                               DISMISSED



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