David Michael Smart v. Harold W. Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999563639-2] Originating case number: 2:14-cv-00045-AWA-DEM Copies to all parties and the district court/agency. [999650420]. Mailed to: David Smart. [15-6370]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6370

DAVID MICHAEL SMART,
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.
Arenda L. Wright Allen,
District Judge. (2:14-cv-00045-AWA-DEM)

Submitted:

August 27, 2015

Decided:

August 31, 2015

Before GREGORY, AGEE, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Michael Smart, Appellant Pro Se.
Craig Stallard,
Assistant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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

certificate

(2012).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(A)

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).
relief

on

the

demonstrating
district

merits,
that

court’s

debatable

or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

constitutional
529

U.S.

by

that

the

claims

is

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

3