                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-6345



ARTHUR LEE GOODEN, II,

                                            Petitioner - Appellant,

          versus


D. A. BRAXTON,

                                             Respondent - Appellee.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.   Jackson L. Kiser, Senior
District Judge. (CA-04-82-7)


Submitted:   July 29, 2004                 Decided:   August 4, 2004


Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Arthur Lee Gooden, II, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

            Arthur Lee Gooden seeks to appeal the district court’s

order dismissing without prejudice for failure to exhaust state

court remedies his petition filed under 28 U.S.C. § 2254 (2000).*

We have independently reviewed the record and conclude that Gooden

has   not    made   a   substantial   showing   of   the   denial   of   a

constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 336

(2003).     Accordingly, we deny a certificate of appealability and

dismiss the appeal.      See 28 U.S.C. § 2253(c) (2000).     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




      *
      Because there is no dispute in the record that exhaustion did
not occur, this order is appealable. See Domino Sugar Corp. v.
Sugar Workers Local Union 392, 10 F.3d 1064 (1993).

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