Boris Alston v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999683844-2]; denying Motion to proceed in forma pauperis (FRAP 24) [999683840-2] Originating case number: 2:14-cv-00327-AWA-LRL Copies to all parties and the district court/agency. [999765037]. Mailed to: Boris Alston. [15-7664]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7664

BORIS JAMES ALSTON,
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-00327-AWA-LRL)

Submitted:

February 25, 2016

Decided:

March 1, 2016

Before SHEDD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Dismissed by unpublished per curiam opinion.

Boris James Alston, Appellant Pro Se. John Watkins Blanton, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Boris James Alston 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 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.”
§ 2253(c)(2) (2012).

28 U.S.C.

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
Alston has not made the requisite showing.

Accordingly, we deny

a certificate of appealability, deny leave to proceed in forma
pauperis, deny Alston’s motion for appointment of counsel, and
dismiss the appeal.
facts

and

legal

We dispense with oral argument because the

contentions

are
2

adequately

presented

in

the

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materials

before

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this

court

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and

argument

would

not

aid

the

decisional process.
DISMISSED

3