Opinion
22-7180
06-26-2023
ANGELA DAWN MILLER, Petitioner - Appellant, v. J. D. SALLAZ, Superintendent, Respondent - Appellee.
Angela Dawn Miller, Appellant Pro Se. Lindsay Sara See, OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellee.
UNPUBLISHED
Submitted: June 22, 2023
Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Frank W. Volk, District Judge. (5:20-cv-00661)
Angela Dawn Miller, Appellant Pro Se.
Lindsay Sara See, OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellee.
Before HARRIS and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Angela Dawn Miller seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing as untimely Miller's 28 U.S.C. § 2254 petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See Gonzales v. Thaler, 565 U.S. 134, 148 &n.9 (2012) (explaining that § 2254 petitions are subject to one-year statute of limitations, running from the latest of four commencement dates enumerated in 28 U.S.C. § 2244(d)(1)). 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 Miller 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.