Demetrius Smalls v. Joseph McFadden

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7620
DEMETRIUS JAROD SMALLS,
Petitioner – Appellant,
v.
JOSEPH MCFADDEN,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard Mark Gergel, District
Judge. (2:13-cv-02651-RMG)
Submitted: March 12, 2015 Decided: March 17, 2015
Before GREGORY, DIAZ, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Demetrius Jarod Smalls, Appellant Pro Se. James Anthony Mabry,
Assistant Attorney General, Donald John Zelenka, Senior
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demetrius Jarod Smalls seeks to appeal the district court’s
orders accepting the recommendation of the magistrate judge and
dismissing as untimely his 28 U.S.C. § 2254 (2012) petition and
denying his Fed. R. Civ. P. 59(e) motion. The orders are not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012).
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) (2012). When the district court denies
relief on the merits, a prisoner 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 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. Slack, 529 U.S.
at 484-85.
We have independently reviewed the record and conclude that
Smalls has not made the requisite showing. Accordingly, we deny
Smalls’ motions for a hearing in district court, to be relieved
from order of judgment, and to dismiss the district court
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judgment, 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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