Liban A. Jama v. Harold W. Clarke , 707 F. App'x 155 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6871
LIBAN A. JAMA,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T.S. Ellis, III, Senior District Judge. (1:17-cv-00380-TSE-IDD)
Submitted: December 14, 2017 Decided: December 27, 2017
Before AGEE, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Liban A. Jama, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Liban A. Jama seeks to appeal the district court’s order dismissing without
prejudice his 28 U.S.C. § 2254 (2012) petition for failure to exhaust state court
remedies. 1 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 conclude that the district court’s procedural ruling is debatable because a state
procedural rule likely would bar consideration of Jama’s claim if presented to the state
court. Hedrick v. True, 443 F.3d 342, 364 (4th Cir. 2006). Nevertheless, we have
independently reviewed the record and conclude that an alternative procedural ground for
dismissal renders this appeal futile: Jama’s petition is barred by the one-year statute of
1
The district court’s order is final and appealable because the defect identified by
the district court must be cured by something more than an amendment to the allegations
in the § 2254 petition. Goode v. Cent. Va. Legal Aid Soc’y, 807 F.3d 619, 623-24 (4th
Cir. 2015).
2
limitations. See 28 U.S.C. § 2244(d)(1) (2012). The district court provided Jama an
opportunity to explain why his petition was not time-barred, see Hill v. Braxton, 277 F.3d
701, 705-08 (4th Cir. 2002), and Jama argued that, if his petition was untimely filed, then
its untimeliness should be excused because he is actually innocent of his convictions, see
McQuiggin v. Perkins, 569 U.S. 383, ___, 133 S. Ct. 1924, 1928 (2013). But, Jama’s
argument does not rely on “new evidence” demonstrating his innocence. 2 Id. (internal
quotation marks omitted). Consequently, we conclude that the untimely filing of Jama’s
petition cannot be excused.
Accordingly, we deny Jama leave to proceed in forma pauperis, deny a certificate
of appealability, and dismiss the appeal. See Reid v. Angelone, 369 F.3d 363, 372 n.5
(4th Cir. 2004), abrogated on other grounds by United States v. McRae, 793 F.3d 392(4th Cir. 2015). 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
2
Jama cited a recent decision by the Supreme Court of Virginia as “new
evidence,” but that decision does not constitute new evidence. See Schlup v. Delo, 513
U.S. 298, 324 (1995).
3