Melvin Funez v. Robert Lewis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7228
MELVIN ELPIDO MEDINA FUNEZ,
Petitioner - Appellant,
v.
ROBERT C. LEWIS; LAFAYETTE HALL,
Respondent - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-hc-02067-BO)
Submitted: October 5, 2012 Decided: October 16, 2012
Before SHEDD, AGEE, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Melvin Elpido Medina Funez, Appellant Pro Se. Mary Carla
Hollis, Assistant Attorney General, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Melvin Elpido Medina Funez seeks to appeal the
district court’s order dismissing 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 Funez 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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