Ronnie Perry v. Frank Perry , 691 F. App'x 96 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6092
RONNIE PERRY,
Petitioner - Appellant,
v.
FRANK L. PERRY,
Respondent - Appellee,
and
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY,
Respondent.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever, III, Chief District Judge. (5:15-hc-02251-D)
Submitted: May 25, 2017 Decided: May 31, 2017
Before MOTZ, THACKER, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ronnie Perry, Appellant Pro Se. Jess D. Mekeel, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Ronnie Perry 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 Perry has not made
the requisite showing. Pursuant to 28 U.S.C. § 2244(d)(1)(D) (2012), the one-year statute
of limitations began to run on February 20, 2012, when the factual predicate for Perry’s
claim could have been discovered through due diligence. Perry did not file his § 2254
petition until October 2015, more than two years after the limitations period expired, and
his intervening petitions did not toll the limitations period. Accordingly, we deny 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
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adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED
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