Darius Simmons v. Harold Clarke

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6974

DARIUS JERMOL SIMMONS,

Petitioner - Appellant,

HAROLD CLARKE, Director,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:12-cv-00046-JCC-TCB)

Submitted: September 13, 2012 Decided: October 19, 2012

Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Darius Jermol Simmons, Appellant Pro Se. Kathleen Beatty
Martin, Senior Assistant Attorney General, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Darius Jermol Simmons seeks to appeal the district

court’s order denying relief on his 28 U.S.C. § 2254 (2006)

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) (2006). 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) (2006). 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 Simmons has not made the requisite showing. Accordingly,

we deny his motion for 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

2
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

DISMISSED