Kalvin Smith v. Todd Pinion ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7325
KALVIN MICHAEL SMITH,
Petitioner – Appellant,
v.
TODD PINION, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:10-cv-00029-CCE-LPA)
Submitted: January 21, 2014 Decided: January 23, 2014
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Earl Coleman, Jr., DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina; David Christopher Pishko, LAW OFFICE OF DAVID
PISHCO, P.A., Winston-Salem, North Carolina, for Appellant.
Danielle Marquis Elder, Mary Carla Hollis, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kalvin Michael Smith 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 Smith 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
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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