Fuller v. Sowers ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6141
GERALD DAVIS FULLER,
Petitioner – Appellant,
v.
RODERICK R. SOWERS,
Respondent – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:08-cv-03489-WMN)
Submitted: September 28, 2010 Decided: October 4, 2010
Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gerald Davis Fuller, Appellant Pro Se. Diane Carroll Bustos,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald Davis Fuller, a state prisoner, seeks to appeal
the district court’s order dismissing his 28 U.S.C.A. § 2241(West 2006 & Supp. 2010) petition as untimely. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (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. We have independently reviewed the record and
conclude that Fuller has not made the requisite showing.
Accordingly, we deny Fuller’s motion for supplemental briefing,
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 the
court and argument would not aid the decisional process.
DISMISSED
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