Montavius Johnson v. David Mitchell , 702 F. App'x 191 ( 2017 )


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  •                                     UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 17-6749
    MONTAVIUS ANTOINE JOHNSON,
    Petitioner - Appellant,
    v.
    DAVID MITCHELL,
    Respondent - Appellee.
    Appeal from the United States District Court for the Western District of North Carolina, at
    Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cv-00003-FDW)
    Submitted: November 21, 2017                                Decided: November 30, 2017
    Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Montavius Antoine Johnson, Appellant Pro Se. Clarence Joe DelForge, III, NORTH
    CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Montavius Antoine Johnson seeks to appeal the district court’s order dismissing his
    
    28 U.S.C. § 2254
     (2012) petition as untimely filed. ∗ The order is not appealable unless a
    0F
    circuit justice or judge issues a certificate of appealability. See 
    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 Johnson 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
    ∗
    This appeal follows our remand to the district court for consideration of Johnson’s
    claims that his petition was timely pursuant to 
    28 U.S.C. § 2244
    (d)(1)(C), (D) (2012). See
    Johnson v. Mitchell, 685 F. App’x 214 (4th Cir. 2017) (No. 16-7216). On remand, the
    district court thoroughly analyzed these arguments, and Johnson’s appeal is now properly
    before this court.
    2
    are adequately presented in the materials before this court and argument would not aid the
    decisional process.
    DISMISSED
    3
    

Document Info

Docket Number: 17-6749

Citation Numbers: 702 F. App'x 191

Judges: Gregory, Traxler, Keenan

Filed Date: 11/21/2017

Precedential Status: Non-Precedential

Modified Date: 10/19/2024