UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6168

JOHN JOSEPH ZINKAND,

Petitioner - Appellant,

v.

CARLOS HERNANDEZ, Supt. of Avery Mitchell Correctional Institution, et al.,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Frank D. Whitney, Chief District Judge. (1:17-cv-00279-FDW)

Submitted: August 23, 2018 Decided: August 28, 2018

Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

John Joseph Zinkand, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

John Joseph Zinkand seeks to appeal the district court’s order dismissing as

untimely his

(2012) petition. The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.

(c)(1)(A)

(2012). A certificate of appealability will not issue absent “a substantial showing of the

denial of a constitutional right.”

(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,

(2000); see Miller-

El v. Cockrell,

(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,

.

We have independently reviewed the record and conclude that Zinkand has not

made the requisite showing. Accordingly, we deny a certificate of appealability, deny

Zinkand’s motion for appointment of counsel, 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

2