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138 F. App'x 535

Lothrarp v. Hunt

U.S. Courts of Appeals

Decided July 7, 2005

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U.S. Courts of Appeals · decided 2005-07-07

Applies 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Slack v. McDaniel · Miller-El v. Cockrell Director Texas Department of Criminal Justice Institutional Division · In the Matter of Samuel Winship

Dismissed by unpublished PER CURIAM opinion · Decided 2005-07-07

PER CURIAM:

¶1 Dulaine Lothrarp, * a North Carolina prisoner, seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C. § 2254 (2000). 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). 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 his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). Lothrarp argues, by counsel, that the district court incorrectly concluded that he had failed to exhaust his present federal claim under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), in state court.

¶2 We have independently reviewed the record, including the detailed record of the state court appellate proceedings, and we conclude that Lothrarp 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.

¶3 DISMISSED

*

¶4 It appears appellant's name is actually spelled "Lotharp.” We have maintained the spelling under which the case was docketed in the district court.

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