Eugene Schuler v. Harold Clarke


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion for leave to file [1000027302-2]; denying Motion certificate of appealability (Local Rule 22(a)) [999999088-2] Originating case number: 1:16-cv-01151-LMB-JFA Copies to all parties and the district court/agency. [1000079877]. Mailed to: E Schuler. [16-7762]

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Appeal: 16-7762 Doc: 15 Filed: 05/11/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7762 EUGENE PETER SCHULER, Petitioner - Appellant, v. HAROLD CLARKE, Director, VDOC, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:16-cv-01151-LMB-JFA) Submitted: April 24, 2017 Before AGEE, WYNN, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Eugene Peter Schuler, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. Decided: May 11, 2017 Appeal: 16-7762 Doc: 15 Filed: 05/11/2017 Pg: 2 of 2 PER CURIAM: Eugene Peter Schuler seeks to appeal the district court’s order 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.” 28 U.S.C. § 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. 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 Schuler has not made the requisite showing. Accordingly, we grant Schuler leave to file an amended informal brief, deny his motion for a certificate of appealability, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2

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