Opinion
No. 18-6795 No. 18-7285
06-20-2019
JOWARSKI RUSSELL NEDD, Petitioner - Appellant, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent - Appellee.
Jowarski Russell Nedd, Appellant Pro Se.
UNPUBLISHED
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:16-cv-00948-JAG-RCY) Before KING, FLOYD, and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Jowarski Russell Nedd, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
In Appeal No. 18-6795, Jowarski Russell Nedd seeks to appeal the district court's order dismissing as untimely his 28 U.S.C. § 2254 (2012) petition. In Appeal No. 18-7285, Nedd seeks to appeal the district court's subsequent order denying reconsideration. The orders are 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 remanded for the limited purpose of permitting the district court to determine whether Nedd is entitled to a reopening of the appeal period pursuant to Fed. R. App. P. 4(a)(6). On remand, the district court granted Nedd's motion to reopen. --------
We have independently reviewed the record and conclude that Nedd has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeals. 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