Martinelly-Montano v. Clarke

Full title: CARLOS ABRAHAM MARTINELLY-MONTANO, Petitioner - Appellant, v. HAROLD…

Court: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Date published: Jun 19, 2018

No. 18-6387 (4th Cir. Jun. 19, 2018)

Opinion

No. 18-6387

06-19-2018

CARLOS ABRAHAM MARTINELLY-MONTANO, Petitioner - Appellant, v. HAROLD CLARKE, Director of the Virginia Department of Corrections, Respondent - Appellee.

Carlos Abraham Martinelly-Montano, Appellant Pro Se.

PER CURIAM

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:17-cv-00367-MSD-DEM) Before TRAXLER, DUNCAN, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Carlos Abraham Martinelly-Montano, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Carlos Abraham Martinelly-Montano seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2012) 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) (2012). 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) (2012). 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 Martinelly-Montano 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