William Phillips v. Warden of Perry Correctional Institution

U.S. Court of Appeals for the Fourth Circuit November 28, 2022

Opinion

USCA4 Appeal: 22-6330 Doc: 11 Filed: 11/28/2022 Pg: 1 of 2

No. 22-6330

Petitioner - Appellant,

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Mary G. Lewis, District Judge. (6:19-cv-02156-MGL)

Submitted: November 22, 2022 Decided: November 28, 2022

Before HARRIS and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

William Joe Phillips, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6330 Doc: 11 Filed: 11/28/2022 Pg: 2 of 2

William Joe Phillips seeks to appeal the district court’s order accepting the

recommendation of the magistrate judge and dismissing as untimely Phillips’

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 Phillips has not made

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

motions to appoint counsel and for abeyance, 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.