Opinion
No. 12-6202
04-26-2012
JACOB DOUGLAS PEYTON, IV, Petitioner - Appellant, v. HAROLD CLARKE, Director, Dept. of Corrections, Respondent - Appellee.
Jacob Douglas Peyton, IV, Appellant Pro Se.
UNPUBLISHED
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, Chief District Judge. (7:11-cv-00566-GEC-RSB)
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jacob Douglas Peyton, IV, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Jacob Douglas Peyton, IV, seeks to appeal the district court's order dismissing his 28 U.S.C. § 2254 (2006) petition as untimely filed. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2006). 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) (2006). 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 Peyton 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 the court and argument would not aid the decisional process.
DISMISSED