Otis Witherspoon v. Commonwealth of Virginia

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1152
OTIS DONALD WITHERSPOON,
Plaintiff - Appellee,
v.
COMMONWEALTH OF VIRGINIA; LABRAVIA J. JENKINS, Commonwealth
Attorney,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis III, Senior
District Judge. (1:11-cv-00963-TSE-TCB)
Submitted: May 31, 2012 Decided: June 5, 2012
Before KING, DUNCAN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Otis Donald Witherspoon, Appellant Pro Se. Turner Anderson
Broughton, Brendan David O’Toole, WILLIAMS MULLEN, Richmond,
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Otis Donald Witherspoon seeks to appeal the district
court’s order dismissing his civil action attacking his Virginia
state convictions on the ground that the prosecutor
intentionally delayed prosecuting Witherspoon in order to gain a
tactical advantage over him. As Witherspoon concedes in his
informal brief, it is clear under Heck v. Humphrey, 512 U.S.
477, 486 (1994), that his lawsuit should be construed as a 28
U.S.C. § 2254 (2006) petition because it attempts only to
demonstrate the invalidity of his state convictions.
To the extent that the district court construed
Witherspoon’s complaint as a § 2254 petition, it dismissed the
petition both as untimely and for failure to exhaust state
remedies. The district court’s order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(A) (2006). 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)
(2006). When the district court denies relief on the merits, a
petitioner 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
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denies relief on procedural grounds, the petitioner 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 have independently reviewed the record and conclude
that Witherspoon has not made the requisite showing.
Accordingly, we deny Witherspoon’s pending motion to appoint
counsel, 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 the court and argument would not aid the decisional
process.
DISMISSED
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