Larry Smith v. Harold Clarke

U.S. Court of Appeals for the Fourth Circuit
Larry Smith v. Harold Clarke, 701 F. App'x 276 (4th Cir. 2017)

Larry Smith v. Harold Clarke

Opinion

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Frankie M. Miller, Jr., seeks to appeal the district court’s order adopting the recommendation of the magistrate judge and dismissing as time-barred and procedurally defaulted his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of ap-pealability 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 demonstrating 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 demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595.

We have independently reviewed the record and conclude that Miller has not made the requisite showing. Accordingly, we deny Miller’s motion for a certificate of appealability, deny leave to proceed in for-ma pauperis, and dismiss the appeal. 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.

DISMISSED

Reference

Full Case Name
Frankie M. MILLER, Jr., Petitioner-Appellant, v. Harold W. CLARKE, Director of the Virginia Department of Corrections, Respondent-Appellee
Status
Unpublished