Desmon Eliaba v. Harold Clarke
UNPUBLISHED PER CURIAM OPINION filed. A certificate of appealability is denied. Originating case number: 3:15-cv-00376-RCY. Copies to all parties and the district court/agency . Mailed to: Desmon Eliaba. [16-7392]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HAROLD CLARKE, Director, Virginia DOC,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Roderick Charles Young,
Magistrate Judge. (3:15-cv-00376-RCY)
February 16, 2017
February 22, 2017
Before GREGORY, Chief Judge, DUNCAN, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Desmon Eliaba, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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Desmon Eliaba seeks to appeal the magistrate judge’s order ∗
dismissing as untimely his 28 U.S.C. § 2254 (2012) petition.
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).
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.
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
Eliaba has not made the requisite showing.
Accordingly, we deny
a certificate of appealability and dismiss the appeal. We dispense
with oral argument because the facts and legal contentions are
The parties consented to the jurisdiction of the magistrate
judge pursuant to 28 U.S.C. § 636(c) (2012).
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argument would not aid the decisional process.
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