Joseph Midyette v. Frank Perry , 594 F. App'x 191 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6005
JOSEPH DIXON MIDYETTE,
Petitioner – Appellant,
v.
FRANK PERRY,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:14-hc-02111-BO)
Submitted: February 25, 2015 Decided: March 2, 2015
Before NIEMEYER, KING, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Joseph Dixon Midyette, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Dixon Midyette seeks to appeal the district court’s
order dismissing as untimely 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 appealability 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 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(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.
We have independently reviewed the record and conclude that
Midyette has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal. We also deny Midyette’s
motion to assign counsel. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before this court and argument would not aid
the decisional process.
DISMISSED
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