
    Arthur Lee GOODEN, II, Petitioner-Appellant, v. D.A. BRAXTON, Respondent — Appellee.
    No. 04-6345.
    United States Court of Appeals, Fourth Circuit.
    Submitted: July 29, 2004.
    Decided: Aug. 4, 2004.
    Arthur Lee Gooden, II, Appellant pro se.
    Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.
    Unpublished opinions are not binding precedent in this circuit.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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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 appeal-able. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (1993).
     