Tommy Harris, Jr. v. Lewis Smith , 548 F. App'x 79 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7187
TOMMY WAYNE HARRIS, JR.,
Petitioner - Appellant,
v.
LEWIS SMITH,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Frank D. Whitney,
Chief District Judge. (1:13-cv-00182-FDW)
Submitted: November 15, 2013 Decided: December 18, 2013
Before SHEDD, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Tommy Wayne Harris, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tommy Wayne Harris, Jr., 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)(A) (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 petition states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
On appeal, we confine our review to the issues raised
in Harris’ brief. See 4th Cir. R. 34(b). Because Harris does
not challenge the basis for the district court’s disposition, he
has forfeited appellate review of the court’s order. In any
event, we would not find debatable the district court’s
conclusion that Harris’ § 2254 petition was untimely. As the
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district court correctly explained, the Supreme Court’s recent
decisions in Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler
v. Cooper, 132 S. Ct. 1376 (2012) did not announce a new rule of
constitutional law. See In re Perez, 682 F.3d 930, 932-34 (11th
Cir. 2012). Moreover, Harris’ untimely motion for appropriate
relief in state court, which he filed in July 2012, did not
serve to toll the one-year statute of limitations under 28
U.S.C. § 2244. See Minter v. Beck, 230 F.3d 663, 665 (4th Cir.
2000). Harris was thus required to file his § 2254 petition by
September 16, 2009, but he did not do so until June 27, 2013.
Therefore, even if we reached the issue, we would agree with the
district court’s conclusion that Harris’ § 2254 petition was
untimely.
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 adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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