Arnold v. Hoffe

Filing 920070108

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-6736 JAMES GUY ARNOLD, Petitioner - Appellant, versus C. MARK HOFFE; OFFICE OF THE ATTORNEY GENERAL, Respondents - Appellees. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. W. Craig Broadwater, District Judge. (3:01-cv-00011-WCB) Submitted: December 20, 2006 Decided: January 8, 2007 Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. James Guy Arnold, Appellant Pro Se. Dawn Ellen Warfield, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Guy Arnold seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing his 28 U.S.C. 2254 (2000) petition without prejudice for failure to exhaust his state court remedies. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Arnold has not made the requisite showing. 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 materials before the court and argument would not aid the decisional process. DISMISSED - 2 -

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