Michael Formica v. Harold Clarke ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6235
MICHAEL FORMICA,
Petitioner - Appellant,
v.
HAROLD W. CLARKE,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Michael F. Urbanski, Chief District Judge. (7:19-cv-00039-MFU-RSB)
Submitted: September 24, 2020 Decided: September 28, 2020
Before HARRIS and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Michael Formica, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Formica seeks to appeal the district court’s order dismissing his 28 U.S.C.
§ 2254 petition as time barred. See Gonzalez v. Thaler, 565 U.S. 134, 148 & n.9 (2012)
(explaining that § 2254 petitions are subject to one-year statute of limitations, running from
latest of four commencement dates enumerated in 28 U.S.C. § 2244(d)(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). 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). When,
as here, 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. Gonzalez, 565 U.S. at 140-
41 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Formica 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 before this court and argument would not aid the
decisional process.
DISMISSED
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