Hytower v. Warden Butner FCI

Full title: KEVIUNTAE HYTOWER, Petitioner - Appellant, v. WARDEN BUTNER FCI; ATTORNEY…

Court: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Date published: Oct 23, 2020

No. 20-6688 (4th Cir. Oct. 23, 2020)

Opinion

No. 20-6688

10-23-2020

KEVIUNTAE HYTOWER, Petitioner - Appellant, v. WARDEN BUTNER FCI; ATTORNEY GENERAL ALAN WILSON, Respondents - Appellees, and STATE OF SOUTH CAROLINA, Respondent.

Keviuntae Hytower, Appellant Pro Se. Arthur Bradley Parham, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellees.

PER CURIAM

UNPUBLISHED

Appeal from the United States District Court for the District of South Carolina, at Greenville. Mary G. Lewis, District Judge. (6:19-cv-01885-MGL) Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and SHEDD, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Keviuntae Hytower, Appellant Pro Se. Arthur Bradley Parham, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Keviuntae Hytower seeks to appeal the district court's order accepting the magistrate judge's recommendation and dismissing as untimely his 28 U.S.C. § 2254 petition. 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 order is 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 Hytower 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 presented in the materials before this court and argument would not aid the decisional process.

DISMISSED