USCA4 Appeal: 24-6887 Doc: 11 Filed: 01/22/2025 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-6887

MARKUS ODON MCCORMICK,

Petitioner - Appellant,

v.

WARDEN DANIEL EVERETT,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:23-hc-02131-D-RJ)

Submitted: January 2, 2025 Decided: January 22, 2025

Before THACKER, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Markus Odon McCormick, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-6887 Doc: 11 Filed: 01/22/2025 Pg: 2 of 3

PER CURIAM:

Markus Odon McCormick seeks to appeal the district court’s order dismissing

his

petition without prejudice for failure to exhaust state remedies. The

order is not appealable unless a circuit justice or judge issues a certificate of appealability.

See

(c)(1)(A). A certificate of appealability will not issue absent “a

substantial showing of the denial of a constitutional right.”

(c)(2). When

the district court denies relief on the merits, a prisoner satisfies this standard by

demonstrating that reasonable jurists could find the district court’s assessment of the

constitutional claims debatable or wrong. See Buck v. Davis,

(2017).

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. Gonzalez v. Thaler,

(2012) (citing Slack v. McDaniel,

(2000)).

The district court found that McCormick’s § 2254 petition was a mixed petition of

both exhausted and unexhausted claims. The court rejected McCormick’s claim that an

inordinate delay in state court excused his failure to exhaust. The court further declined to

allow McCormick to proceed with his exhausted claims, reasoning that he had ample time

to exhaust all his claims in state court and return to federal court under § 2244(d)(1). Thus,

the court dismissed the petition without prejudice to allow McCormick to refile it after

exhausting his claims in state court. On appeal, McCormick argues that the district court

erred in finding that some of his claims were unexhausted and that dismissing his petition

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as mixed was improper and constitutes prejudicial error, and that failure to review his

petition would result in a fundamental miscarriage of justice.

We have independently reviewed the record and conclude that McCormick has not

made the requisite showing. Accordingly, we deny McCormick’s motions to expedite and

for bail or release pending appeal and 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 this court and argument would not aid the

decisional process.

DISMISSED

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