Kirkland v. Clark ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS H. KIRKLAND, SR., 
Petitioner-Appellant,
v.  No. 00-7172
JAY J. CLARK, Superintendent,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-00-224)
Submitted: November 14, 2000
Decided: December 22, 2000
Before LUTTIG and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
COUNSEL
Thomas H. Kirkland, Sr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 KIRKLAND v. CLARK
OPINION
PER CURIAM:
Thomas H. Kirkland, Sr., appeals the district court’s order denying
relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &
Supp. 2000). The district court found Kirkland’s habeas petition
untimely. In light of the time the statute of limitations under the
Antiterrorism and Effective Death Penalty Act was tolled during the
pendency of state motions for appropriate relief, we find the habeas
petition to be timely.
Because we conclude Kirkland’s petition was timely filed, we eval-
uate his claims under the standard articulated in Slack v. McDaniel,
120 S. Ct. 1595, 1604 (2000). Under Slack, when the district court
denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claims, as the court did in Kirk-
land’s case, we may issue a certificate of appealability permitting an
appeal of the district court’s order if the petitioner demonstrates "that
jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct
in its procedural ruling." Id. Because we conclude that jurists of rea-
son would not find it debatable that Kirkland has not alleged a valid
claim of the denial of a constitutional right, we deny a certificate of
appealability and dismiss Kirkland’s appeal. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
DISMISSED