Kalen Nielsen v. Harold Clarke ( 2021 )


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  •                                     UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 20-7549
    KALEN JOSEPH NIELSEN,
    Petitioner - Appellant,
    v.
    HAROLD W. CLARKE, Director, Virginia Department of Corrections,
    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-00657-MFU-RSB)
    Submitted: January 19, 2021                                       Decided: January 22, 2021
    Before AGEE, WYNN, and DIAZ, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Bryan Jeffrey Jones, Charlottesville, Virginia, for Appellant.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Kalen Joseph Nielsen seeks to appeal the district court’s order dismissing as
    untimely his 
    28 U.S.C. § 2254
     petition. 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 Nielsen 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
    2
    

Document Info

Docket Number: 20-7549

Filed Date: 1/22/2021

Precedential Status: Non-Precedential

Modified Date: 1/22/2021