Blount v. Johnson , 405 F. App'x 776 ( 2010 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-6810
    FRANK A. BLOUNT,
    Petitioner – Appellant,
    v.
    GENE M. JOHNSON,    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, District
    Judge. (2:09-cv-00331-RBS-DEM)
    Submitted:   December 16, 2010            Decided:   December 27, 2010
    Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Frank A. Blount, Appellant Pro Se.          Donald Eldridge Jeffrey,
    III,   Assistant Attorney  General,        Richmond,  Virginia,  for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Frank A. Blount 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)
    (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    Blount     has     not    made     the   requisite      showing.
    Accordingly, we deny a certificate of appealability and dismiss
    the appeal.           We dispense with oral argument because the facts
    and legal contentions are adequately presented in the materials
    2
    before   the   court   and   argument   would   not   aid   the   decisional
    process.
    DISMISSED
    3
    

Document Info

Docket Number: 10-6810

Citation Numbers: 405 F. App'x 776

Judges: Gregory, Duncan, Davis

Filed Date: 12/27/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024