Jarius Phillips v. Harold Clarke

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6970
JARIUS DAMAR PHILLIPS,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda L. Wright Allen,
District Judge. (2:13-cv-00337-AWA-LRL)
Submitted: October 21, 2014 Decided: October 24, 2014
Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jarius Damar Phillips, Appellant Pro Se. Steven Andrew Witmer,
Senior Assistant Attorney General, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jarius Damar Phillips seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge and dismissing as untimely his 28 U.S.C. § 2254 (2012)
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) (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 Phillips has not made the requisite showing. Accordingly,
we deny Phillips’ motion to appoint counsel, deny a certificate
of appealability, deny leave to proceed in forma pauperis, and
dismiss the appeal. We dispense with oral argument because the
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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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