Ronnie Perry v. Frank Perry

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-6092

RONNIE PERRY,

Petitioner - Appellant,

FRANK L. PERRY,

Respondent - Appellee,

and

NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY,

Respondent.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever, III, Chief District Judge. (5:15-hc-02251-D)

Submitted: May 25, 2017 Decided: May 31, 2017

Before MOTZ, THACKER, and HARRIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Ronnie Perry, Appellant Pro Se. Jess D. Mekeel, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Ronnie Perry 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. 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 Perry has not made

the requisite showing. Pursuant to 28 U.S.C. § 2244(d)(1)(D) (2012), the one-year statute

of limitations began to run on February 20, 2012, when the factual predicate for Perry’s

claim could have been discovered through due diligence. Perry did not file his § 2254

petition until October 2015, more than two years after the limitations period expired, and

his intervening petitions did not toll the limitations period. 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

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adequately presented in the materials before this court and argument would not aid the

decisional process.

DISMISSED