                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 02-7620



PETER BURKE, SR.,

                                             Petitioner - Appellant,

          versus


DAVID CHESTER,

                                              Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CA-02-657-5-BO)


Submitted:   December 19, 2002             Decided:   January 7, 2003


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


Dismissed by unpublished per curiam opinion.


Peter Burke, Jr., Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

     Peter Burke, Sr., a state prisoner, seeks to appeal the

district court’s order dismissing without prejudice his petition

filed under 28 U.S.C. § 2254 (2000).   Burke has also filed a motion

for appointment of appellate counsel.

     An appeal may not be taken from the final order in a habeas

corpus proceeding 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 § 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 reviewed

the record and conclude for the reasons stated by the district

court that Burke has not made the requisite showing.    See Burke v.

Chester, No. CA-02-657-5-BO (E.D.N.C. Sept. 23, 2002). Accordingly,

we deny a certificate of appealability and dismiss the appeal.    We

deny Burke’s motion for appointment of appellate counsel.         We

dispense with oral argument because the facts and legal contentions




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are adequately presented in the materials before the court and

argument would not aid the decisional process.




                                                     DISMISSED




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