Donte Gwynn v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999295307-2]; denying for certificate of appealability Originating case number: 2:13-cv-00074-MSD-TEM Copies to all parties and the district court/agency. [999383637]. Mailed to: D. Gwynn. [14-6090]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-6090

DONTE JAMAR GWYNN,
Petitioner – Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of
Corrections,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Mark S. Davis, District
Judge. (2:13-cv-00074-MSD-TEM)

Submitted:

May 28, 2014

Decided:

June 26, 2014

Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Donte Jamar Gwynn, Appellant Pro Se. Steven Andrew Witmer,
Senior Assistant Attorney General, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Donte Jamar Gwynn seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing his 28 U.S.C. § 2254 (2012) petition as untimely.
The order is not appealable unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(A) (2012).
issue

absent

“a

of

appealability.

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

28

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2012).

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

Gwynn

has

not

made

the

requisite

showing.

A

one-year

limitations period applies to the filing of § 2254 petitions
under the Antiterrorism and Effective Death Penalty Act of 1996.
28

U.S.C.

§ 2244(d)

(2012).

The
2

limitations

period

is

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statutorily tolled for the time during which a properly filed
application for state collateral review is pending.
§ 2244(d)(2).
only

when

28 U.S.C.

a

The limitations period may be equitably tolled
petitioner

demonstrates

“(1)

that

he

has

been

pursuing his rights diligently, and (2) that some extraordinary
circumstance
Holland

v.

stood

in

Florida,

his

130

way

S.

and

Ct.

prevented

2549,

2562

timely
(2010)

filing.”
(internal

quotation marks omitted).
On appeal, Gwynn does not challenge the calculations
of the one-year limitations period.

He appears to argue that he

is entitled to equitable tolling because the Supreme Court of
Virginia did not inform him of his federal filing deadline when
it refused the appeal of his state habeas petition on August 8,
2012.

Gwynn did not present this contention to the district

court, and thus we may not consider it for the first time on
appeal, absent certain limited circumstances not present here.
See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993)
(“[I]ssues raised for the first time on appeal generally will
not

be

considered

.

.

.

[unless]

refusal

to

consider

the

newly-raised issue would be plain error or would result in a
fundamental miscarriage of justice.”).
In any event, Gwynn has not shown that the district
court’s dispositive procedural ruling is debatable.

The record

reflects

January

that

Gwynn’s

conviction
3

became

final

on

5,

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2011, ninety days after his direct appeal was refused by the
Supreme Court of Virginia.
days,

until

Gwynn

The limitations period ran for 237

executed

his

petition on August 30, 2011.

properly

filed

state

habeas

The Supreme Court of Virginia

refused Gwynn’s petition for appeal of his state habeas petition
on August 8, 2012.

The remainder of his limitations began to

run, and the period expired 128 days later on December 14, 2012.
Because Gwynn’s federal habeas petition was not executed until
January 25, 2013, see Houston v. Lack, 487 U.S. 266 (1988), the
petition was not timely filed.
Accordingly, we deny a certificate of appealability,
deny leave to proceed in forma pauperis and dismiss the appeal.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

DISMISSED

4