Murray Smith v. Bureau of Prison

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [998746001-2] Originating case number: 3:11-cv-00070-REP Copies to all parties and the district court. [998812470]. Mailed to: Murray Smith. [11-7024]

Appeal: 11-7024

Document: 11

Date Filed: 03/19/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7024

MURRAY LEON SMITH,
Petitioner – Appellant,
v.
BUREAU OF PRISONS; HAROLD W. CLARKE, Director; DAVID A.
ROBINSON, Regional Director; KENNETH T. CUCCINELLI, II,
Attorney General; GEORGE M. HINKLE, Respondent Custodian
Chief Warden; DAVID H. BECK, Spotsylvania County Judge;
ROBERT B. VAN ARSOALE, Appointed, Office of the U.S.
Trustee; WILLIAM F. NEELY, Chief Prosecuting Attorney;
KIMBERLY A. HACKBARTH, Assistant Commonwealth Attorney;
CHRISTALYN M. JETT, Deputy Clerk of the Circuit Court,
Respondents - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:11-cv-00070-REP)

Submitted:

March 15, 2012

Decided:

March 19, 2012

Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Murray Leon Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-7024

Document: 11

Date Filed: 03/19/2012

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PER CURIAM:
Murray Leon Smith seeks to appeal the district court’s
order

dismissing

petition.
or

judge

as

untimely

28

U.S.C.

§

2254

(2006)

The order is not appealable unless a circuit justice
issues

a

certificate

§ 2253(c)(1)(A) (2006).
issue

his

absent

“a

appealability.

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

of

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2006).

of

a

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

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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 Smith 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

2

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Date Filed: 03/19/2012

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presented in the materials before the court and argument would
not aid the decisional process.

DISMISSED

3