John Smith v. Harold Clarke

                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-6490


JOHN ANGELO SMITH,

                 Petitioner - Appellant,

          v.

HAROLD CLARKE,

                 Respondent - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     Jackson L. Kiser, Senior
District Judge. (7:14-cv-00684-JLK-RSB)


Submitted:   June 25, 2015                 Decided:   June 30, 2015



Before GREGORY, FLOYD, and THACKER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


John Angelo Smith, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      John Angelo Smith seeks to appeal the district court’s order

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.           See 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

Smith leave to proceed in forma pauperis, 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 this court and argument would

not aid the decisional process.

                                    2
    DISMISSED




3