Allen v. Smith

U.S. Court of Appeals for the Fourth Circuit
Allen v. Smith, 112 F. App'x 930 (4th Cir. 2004)

Allen v. Smith

Opinion

PER CURIAM:

Daniel Allen, Sr., seeks to appeal the district court’s order dismissing as untimely his 28 U.S.C. § 2254 (2000) petition. 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).

By failing to challenge in his informal brief the district court’s finding regarding timeliness, Allen has waived his right to challenge the district court’s dismissal of his § 2254 petition as untimely. 4th Cir. R. 34(b). Moreover, our independent review of the record reflects that his petition was indeed untimely. 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.

DISMISSED

Reference

Full Case Name
Daniel ALLEN, Sr., Petitioner—Appellant, v. Raymond SMITH, Superintendent, Respondent—Appellee, and Theodis Beck, Secretary of North Carolina Corrections, Respondent
Status
Unpublished