UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7727
DAVID F. EATON,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director, VDOC,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:11-cv-00834-MHL)
Submitted: January 22, 2013 Decided: January 25, 2013
Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David F. Eaton, Appellant Pro Se. Robert H. Anderson, III,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David F. Eaton seeks to appeal the magistrate judge’s
order dismissing as untimely his 28 U.S.C. § 2254 (2006)
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) (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
relief is denied 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 relief is denied 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 Eaton has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
*
The parties consented to the jurisdiction of the
magistrate judge pursuant to 28 U.S.C. § 636(c) (2006).
2
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
3