Frankie Miller, Jr. v. Harold Clarke , 699 F. App'x 264 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6765
FRANKIE M. MILLER, JR.,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, District Judge. (2:16-cv-00645-MSD-DEM)
Submitted: October 23, 2017 Decided: November 13, 2017
Before DUNCAN, WYNN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Frankie M. Miller, Jr., Appellant Pro Se. Joseph Christian Obenshain, Assistant Attorney
General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.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 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 Miller has not made
the requisite showing. Accordingly, we deny Miller’s motion for a certificate of
appealability, deny leave to proceed in forma 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
2