Brian Damon FARABEE, Petitioner-Appellant, v. SUPERINTENDENT, MEHERRIN RIVER REGIONAL JAIL; Va. Dep't of Corr.; Commissioner of the DBHDS, Respondents-Appellees, 685 F. App'x 268

Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brian Damon Farabee seeks to appeal the district court’s orders purportedly accepting the recommendation of the magistrate judge and dismissing his 28 U.S.C. § 2254 (2012) petition, and denying reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2012); Buck v. Davis, — U.S. —, 137 S.Ct. 759, 773, 197 L.Ed.2d 1 (2017).

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) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by showing that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

When the district court denies relief on procedural grounds, the prisoner must show both that the dispositive procedural ruling is debatable, and the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. The magistrate judge found that Fara-bee’s § 2254 petition was a mixed petition of both exhausted and unexhausted claims. Applying Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the magistrate judge recommended dismissing the petition without prejudice to allow him to refile it after exhausting his claims in state court.

See also Rhines v. Weber, 544 U.S. 269, 277-79, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). In its final order, the district court adopted the magistrate judge’s findings and recommendations but dismissed the petition with prejudice and denied reconsideration. On appeal, Farabee argues the district court erred in dismissing his petition with prejudice. We agree. We therefore grant a certificate of appealability on this issue, vacate the district court’s orders, and remand for reconsideration.

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. VACATED AND REMANDED