Reeves v. Clark

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6518
LEONARD REEVES,
Petitioner - Appellant,
versus
J. J. CLARK, Administrator, Southern
Correctional Institution, Troy, North
Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CA-03-437-5-BO)
Submitted: August 25, 2004 Decided: September 14, 2004
Before WIDENER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
H. Gerald Beaver, BEAVER, HOLT, STERNLIGHT & COURIE, P.A.,
Fayetteville, North Carolina, for Appellant. Roy Cooper, Attorney
General, Clarence Joe DelForge, III, Assistant Attorney General,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Leonard Reeves appeals a district court order and
judgment dismissing as untimely his 28 U.S.C. § 2254 (2000)
petition. The district court granted Reeves’ request for a
certificate of appealability (“COA”) as to when the denial by the
North Carolina Supreme Court of a petition for writ of certiorari
in a direct criminal appeal ceased to be pending for purposes of
filing a petition for writ of certiorari to the United States
Supreme Court. We affirm the district court’s conclusion that the
North Carolina Supreme Court’s denial of a petition for writ of
certiorari in a direct criminal appeal ceased to be pending on the
date it was denied. In this case, the petition ceased to be
pending on December 18, 2001. Thus, Reeves’ § 2254 petition, filed
on June 3, 2003, was untimely.
In his brief, Reeves raises issues which were not granted
a COA. Nor did Reeves follow the procedures outlined in Reid v.
True, 349 F.3d 788, 796 (4th Cir.), cert. denied, 124 S. Ct. 979(2003), with respect to filing a brief containing issues which were
not granted a COA. Prior to Reeves filing his brief, this Court
denied Reeves’ motion to expand the COA to include an issue
regarding equitable tolling of the one-year limitations period in
which to file a § 2254 (2000) petition. In addition, the district
court denied a COA as to a similar issue and also denied Reeves’
request for a COA as to whether the period in which to file a
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petition for writ of certiorari with the United States Supreme
Court commenced when he received notice that the North Carolina
Supreme Court denied his petition for writ of certiorari. This
Court will not consider issues not specified in a COA. See
Phelps v. Alameda, 366 F.3d 722, 729 (9th Cir. 2004); Wright v.
Norris, 299 F.3d 926, 928 (8th Cir. 2002).
Accordingly, we affirm that part of the district court’s
order finding Reeves’ § 2254 petition untimely because the state
order denying a petition for writ of certiorari became final the
date it was entered. With respect to all other issues, the appeal
is dismissed. 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.
AFFIRMED IN PART; DISMISSED IN PART
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