UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6973
ELBERT SMITH,
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. Robert G. Doumar, Senior
District Judge. (2:13-cv-00611-RGD-LRL)
Submitted: October 21, 2014 Decided: October 24, 2014
Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Elbert Smith, Appellant Pro Se. James Milburn Isaacs, Jr.,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elbert Smith 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 Smith has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny leave to proceed in
forma pauperis, deny Smith’s motion to compel the institutional
accountant to provide documentation, and dismiss the appeal. We
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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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