UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6090
DONTE JAMAR GWYNN,
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. Mark S. Davis, District
Judge. (2:13-cv-00074-MSD-TEM)
Submitted: May 28, 2014 Decided: June 26, 2014
Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Donte Jamar Gwynn, 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Unpublished opinions are not binding precedent in this circuit.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:
Donte Jamar Gwynn seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing his 28 U.S.C. § 2254 (2012) petition as untimely.
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 Gwynn has not made the requisite showing. A one-year
limitations period applies to the filing of § 2254 petitions
under the Antiterrorism and Effective Death Penalty Act of 1996.
28 U.S.C. § 2244(d) (2012). The limitations period is
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statutorily tolled for the time during which a properly filed
application for state collateral review is pending. 28 U.S.C.
§ 2244(d)(2). The limitations period may be equitably tolled
only when a petitioner demonstrates “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.”
Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (internal
quotation marks omitted).
On appeal, Gwynn does not challenge the calculations
of the one-year limitations period. He appears to argue that he
is entitled to equitable tolling because the Supreme Court of
Virginia did not inform him of his federal filing deadline when
it refused the appeal of his state habeas petition on August 8,
2012. Gwynn did not present this contention to the district
court, and thus we may not consider it for the first time on
appeal, absent certain limited circumstances not present here.
See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993)
(“[I]ssues raised for the first time on appeal generally will
not be considered . . . [unless] refusal to consider the
newly-raised issue would be plain error or would result in a
fundamental miscarriage of justice.”).
In any event, Gwynn has not shown that the district
court’s dispositive procedural ruling is debatable. The record
reflects that Gwynn’s conviction became final on January 5,
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2011, ninety days after his direct appeal was refused by the
Supreme Court of Virginia. The limitations period ran for 237
days, until Gwynn executed his properly filed state habeas
petition on August 30, 2011. The Supreme Court of Virginia
refused Gwynn’s petition for appeal of his state habeas petition
on August 8, 2012. The remainder of his limitations began to
run, and the period expired 128 days later on December 14, 2012.
Because Gwynn’s federal habeas petition was not executed until
January 25, 2013, see Houston v. Lack, 487 U.S. 266 (1988), the
petition was not timely filed.
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 presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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