                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 02-7439



RONALD J. PRESCO,

                                               Plaintiff - Appellant,

          versus


ROBERT KUPEC,   Warden,   Eastern   Correctional
Institution,

                                                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CA-
02-1544-DKC)


Submitted:   November 21, 2002             Decided:   December 4, 2002


Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Ronald J. Presco, Appellant Pro Se.     John Joseph Curran, Jr.,
Attorney General, Sharon Stanley Street, Assistant Attorney
General, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Ronald J. Presco, a Maryland prisoner, seeks to appeal the

district court’s order construing his 42 U.S.C. § 1983 (2000)

action as a petition filed under 28 U.S.C. § 2241 (2000), and

dismissing it without prejudice for failure to exhaust state

remedies.      An appeal may not be taken to this court from the final

order    in    a   habeas     corpus   proceeding    in   which   the    detention

complained of arises out of process issued by a state court unless

a circuit justice or judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1) (2000).                When, as here, a district court

dismisses      a   §   2241   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.

2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

     We have reviewed the record and conclude for the reasons

stated by the district court that Presco has not made the requisite

showing. See Presco v. Kupec, No. CA-02-1544-DKC (D. Md. Sept. 17,

2002).    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


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materials   before   the   court   and   argument   would   not    aid   the

decisional process.




                                                                  DISMISSED




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