John Smith v. Warden ( 2018 )


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  •                                     UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 18-6877
    JOHN ANGELO SMITH,
    Petitioner - Appellant,
    v.
    WARDEN,
    Respondent - Appellee.
    Appeal from the United States District Court for the Western District of Virginia, at
    Roanoke. Jackson L. Kiser, Senior District Judge. (7:17-cv-00072-JLK-RSB)
    Submitted: November 29, 2018                                 Decided: December 4, 2018
    Before DUNCAN and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
    Dismissed by unpublished per curiam opinion.
    John Angelo Smith, Appellant Pro Se.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    John Angelo 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 Smith’s motion for 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
    2
    

Document Info

Docket Number: 18-6877

Filed Date: 12/4/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021