Montavius Johnson v. David Mitchell

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                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT



                                       No. 17-6749


MONTAVIUS ANTOINE JOHNSON,

                     Petitioner - Appellant,

              v.

DAVID MITCHELL,

                     Respondent - Appellee.



Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cv-00003-FDW)


Submitted: November 21, 2017                                Decided: November 30, 2017


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Montavius Antoine Johnson, Appellant Pro Se. Clarence Joe DelForge, III, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Montavius Antoine Johnson seeks to appeal the district court’s order dismissing his

28 U.S.C. § 2254 (2012) petition as untimely filed. ∗ The order is not appealable unless a
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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 Johnson has not

made the requisite showing. Accordingly, we deny a certificate of appealability and

dismiss the appeal. We dispense with oral argument because the facts and legal contentions




       ∗
          This appeal follows our remand to the district court for consideration of Johnson’s
claims that his petition was timely pursuant to 28 U.S.C. § 2244(d)(1)(C), (D) (2012). See
Johnson v. Mitchell, 685 F. App’x 214 (4th Cir. 2017) (No. 16-7216). On remand, the
district court thoroughly analyzed these arguments, and Johnson’s appeal is now properly
before this court.


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

decisional process.

                                                                             DISMISSED




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