UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6358

DAVID ERNEST MALINZAK, Petitioner - Appellant, v. STATE OF NORTH CAROLINA, Respondent - Appellee.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:20-cv-00320-WO-LPA)

Submitted: April 14, 2022 Decided: April 26, 2022

Before NIEMEYER, RICHARDSON, and HEYTENS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Ernest Malinzak, Appellant Pro Se. Jonathan Porter Babb, Sr., Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David Ernest Malinzak seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and dismissing as untimely Malinzak’s 28 U.S.C. § 2254 petition. See Gonzalez v. Thaler, 565 U.S. 134, 148 & n.9 (2012) (explaining that § 2254 petitions are subject to one-year statute of limitations, running from latest of four commencement dates enumerated in 28 U.S.C. § 2244(d)(1)). The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). 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). When, as here, 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. Gonzalez, 565 U.S. at 140-41 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Malinzak has not made the requisite showing. 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 this court and argument would not aid the decisional process.

DISMISSED