Gooden v. Braxton

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 4, 2004
• Docket: 04-6345
• Status: Unpublished

Opinion

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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