Wesley Earnest v. Keith Davis ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7531
WESLEY BRIAN EARNEST,
Petitioner - Appellant,
v.
KEITH W. DAVIS, Warden; HAROLD W. CLARKE, Director Virginia
Department of Corrections,
Respondents - Appellees.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:18-cv-00595-EKD-JCH)
Submitted: February 18, 2021 Decided: February 23, 2021
Before NIEMEYER, KING, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Wesley Brian Earnest, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wesley Brian Earnest 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 Earnest has not made
the requisite showing. Accordingly, although we grant Earnest’s motion to exceed length
limitations for the informal brief, we deny his motions for an evidentiary hearing and 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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