UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6700
JOHN F. ALLEN,
Petitioner – Appellant,
v.
GENE M. JOHNSON, Director, Virginia Department of Corrections,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:08-cv-01343-TSE-TCB)
Submitted: August 31, 2010 Decided: September 21, 2010
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John F. Allen, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John F. Allen 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) (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.
Allen’s challenge to the district court’s timeliness
ruling hinges on facts and an argument he did not present to the
district court. We generally do not consider new arguments
raised for the first time on appeal. See Sawyer v. Whitley, 505
U.S. 333, 338-39 (1992); Murray v. Carrier, 477 U.S. 478, 495-96
(1986); Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).
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“Exceptions to this general rule are made only in very limited
circumstances, such as where refusal to consider the newly-
raised issue would be plain error or would result in a
fundamental miscarriage of justice.” Id. Such is not the case
here.
We have independently reviewed the record and conclude
that Allen has not made the showing required for issuance of a
certificate of appealability. Accordingly, we 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 the
court and argument would not aid the decisional process.
DISMISSED
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