Newkirk v. Director, Dept. of Corrections , 704 F. App'x 268 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-7349
KENNETH TYRONE CHATMAN,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director VDOC,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Norman K. Moon, Senior District Judge. (7:16-cv-00540-NKM-RSB)
Submitted: December 19, 2017 Decided: December 22, 2017
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kenneth Tyrone Chatman, Appellant Pro Se. Craig Stallard, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Tyrone Chatman seeks to appeal the district court’s order dismissing his
28 U.S.C. § 2254 (2012) petition as untimely filed and procedurally defaulted. The order
is not appealable unless a circuit justice or judge issues a certificate of appealability. 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 Chatman has not
made the requisite showing. Accordingly, we deny 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
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