Jacob Peyton v. Harold Clarke

                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-6202


JACOB DOUGLAS PEYTON, IV,

                Petitioner - Appellant,

          v.

HAROLD CLARKE, Director, Dept. of Corrections,

                Respondent - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       Glen E. Conrad, Chief
District Judge. (7:11-cv-00566-GEC-RSB)


Submitted:   April 19, 2012                 Decided:   April 26, 2012


Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Jacob Douglas Peyton, IV, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

           Jacob Douglas Peyton, IV, seeks to appeal the district

court’s order dismissing his 28 U.S.C. § 2254 (2006) petition as

untimely filed.        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 Peyton has not made the requisite showing.             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 adequately



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presented in the materials before the court and argument would

not aid the decisional process.



                                                     DISMISSED




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