UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

(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

(c)(1)

(2006). A certificate of appealability will not issue absent “a

substantial showing of the denial of a constitutional right.”

(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,

(2000); see Miller-El v. Cockrell,

(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,

. 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

3