McGary

MEMORANDUM *

Darnell McGary (“McGary”) appeals the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 habeas corpus petition for lack of exhaustion. McGary challenges his civil commitment in the state of Washington as a sexually violent predator. He concedes that the only issue on which he has a certificate of appealability (“COA”) is whether he needs a COA to appeal the dismissal of his habeas petition, and further concedes that he needs a COA and does not have one. He requests that we expand his COA to include two arguments: (1) that we should remand because some of his claims have since been exhausted; and (2) that he should have been excused from exhaustion of his double jeopardy claim. Because the parties are familiar with the factual and procedural history of this case, we do not recount it in detail here except as necessary to explain our decision. We conclude that McGary has not made a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253 (c)(2), and we affirm without expanding McGary’s COA.

McGary concedes that his claims were unexhausted at the time the petition was filed, but argues that we should remand, because of his…