Austin Brame v. Wendell Pixley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7094
AUSTIN KERR BRAME,
Petitioner - Appellant,
v.
WENDELL W. PIXLEY, Warden, St. Brides Correctional Center,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:11-cv-00564-RAJ-FBS)
Submitted: September 11, 2012 Decided: September 18, 2012
Before SHEDD, DAVIS, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Austin Kerr Brame, Appellant Pro Se. Donald Eldridge Jeffrey,
III, Assistant Attorney General, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Austin Kerr Brame seeks to appeal the district court’s
order denying as untimely his 28 U.S.C. § 2254 (2006) petition.
The 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 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 Brame has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
DISMISSED
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