Jefferey Hurley v. Harold Clarke ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7370
JEFFEREY A. HURLEY,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:12-cv-00408-RBS-TEM)
Submitted: December 19, 2013 Decided: December 24, 2013
Before SHEDD, DAVIS, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jefferey A. Hurley, Appellant Pro Se. Robert H. Anderson, III,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jefferey A. Hurley seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge and 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 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 v. McDaniel, 529 U.S.
473, 484-85 (2000).
We have independently reviewed the record and conclude
that Hurley has not made the requisite showing. Accordingly, we
deny Hurley’s motion to compel and 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