Gary Shortt v. Director, VDOC , 692 F. App'x 723 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6465
GARY SHORTT,
Petitioner - Appellant,
v.
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. James P. Jones, District Judge. (7:16-cv-00017-JPJ-RSB)
Submitted: June 20, 2017 Decided: June 23, 2017
Before SHEDD, WYNN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gary Shortt, Appellant Pro Se. Eugene Paul Murphy, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Shortt seeks to appeal the district court’s order dismissing as untimely his 28
U.S.C. § 2254 (2012) petition and the court’s order denying his Fed. R. Civ. P. 59(e)
motion. The orders are 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 Shortt has not made
the requisite showing. Accordingly, we deny a certificate of appealability 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
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