Carter v. Commonwealth of Virginia ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6233
DEON CARTER,
Petitioner - Appellant,
v.
COMMONWEALTH OF VIRGINIA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:09-cv-00121-HEH)
Submitted: July 23, 2010 Decided: August 11, 2010
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Deon Carter, Appellant Pro Se. Joshua Mikell Didlake, Assistant
Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deon Carter seeks to appeal the district court’s order
dismissing as untimely his 28 U.S.C. § 2254 (2006) petition.
The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2006). 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) (2006). 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 motion 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 Carter 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
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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