Opinion
22-7220
08-28-2023
ALFONZO HOWARD, Petitioner - Appellant, v. MICHAEL STEPHAN, Respondent - Appellee.
Alfonzo Howard, Appellant Pro Se.
UNPUBLISHED
Submitted: August 24, 2023
Appeal from the United States District Court for the District of South Carolina, at Aiken. Richard Mark Gergel, District Judge. (1:21-cv-03356-RMG)
Alfonzo Howard, Appellant Pro Se.
Before QUATTLEBAUM and HEYTENS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Alfonzo Howard seeks to appeal the district court's order accepting the magistrate judge's recommendation and dismissing as untimely Howard's 28 U.S.C. § 2254 petition and the court's order denying Fed.R.Civ.P. 59(e) relief.[*] See Gonzalez v. Thaler, 565 U.S. 134, 148 &n.9 (2012) (explaining that § 2254 petitions are subject to one-year statute of limitations, running from latest of four commencement dates enumerated in 28 U.S.C. § 2244(d)(1)). The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). 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). When, as here, 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. Gonzalez, 565 U.S. at 140-41 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Howard 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 are adequately presented in the materials before this court and argument would not aid the decisional process.
DISMISSED.
[*] Although Howard asserts on appeal that he did not consent to the jurisdiction of a magistrate judge, see 28 U.S.C. § 636(c), the district court properly referred Howard's petition under 28 U.S.C. § 636(b) for proposed findings and recommendations.