                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-6922


HARVEY P. SHORT,

                Plaintiff - Appellant,

          v.

ADRIAN HOKE, Warden,

                Defendant - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.    David A. Faber,
Senior District Judge. (2:09-cv-01097)


Submitted:   November 30, 2010            Decided:   December 7, 2010


Before WILKINSON, KEENAN, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Harvey P. Short, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

               Harvey P. Short seeks to appeal the district court’s

order adopting the magistrate judge’s recommendation and denying

relief without prejudice on his 28 U.S.C. § 2254 (2006) petition

for failure to exhaust state court remedies.                               The order is 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      Short     has    not       made      the        requisite      showing.

Accordingly, we deny a certificate of appealability and dismiss

the   appeal.         Short’s      motion    to      compel        the    Circuit       Court    of

Kanawha County to adjudicate his state habeas corpus petition is

                                                2
denied.     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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