Benjamin Stith v. R. Younce ( 2023 )


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  • USCA4 Appeal: 23-6902      Doc: 8        Filed: 12/27/2023     Pg: 1 of 2
    UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 23-6902
    BENJAMIN L. STITH,
    Petitioner - Appellant,
    v.
    R. YOUNCE, Warden,
    Respondent - Appellee.
    Appeal from the United States District Court for the Western District of Virginia, at
    Roanoke. James P. Jones, Senior District Judge. (7:23-cv-00140-JPJ-PMS)
    Submitted: December 19, 2023                                Decided: December 27, 2023
    Before HARRIS, QUATTLEBAUM, and BENJAMIN, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Benjamin L. Stith, Appellant Pro Se.
    Unpublished opinions are not binding precedent in this circuit.
    USCA4 Appeal: 23-6902         Doc: 8      Filed: 12/27/2023      Pg: 2 of 2
    PER CURIAM:
    Benjamin Stith seeks to appeal the district court’s order dismissing as untimely his
    
    28 U.S.C. § 2254
     petition. See Gonzalez v. Thaler, 
    564 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. See 
    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 v. Thaler, 
    565 U.S. 134
    , 140-41
    (2012) (citing Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000)).
    We have independently reviewed the record and conclude that Stith 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: 23-6902

Filed Date: 12/27/2023

Precedential Status: Non-Precedential

Modified Date: 12/28/2023