Ronnie Perry v. Frank Perry


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [1000035154-2], denying Motion to proceed in forma pauperis (FRAP 24) [1000031336-2] Originating case number: 5:15-hc-02251-D Copies to all parties and the district court/agency. [1000091370]. Mailed to: Ronnie Perry. [17-6092]

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Appeal: 17-6092 Doc: 15 Filed: 05/31/2017 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-6092 RONNIE PERRY, Petitioner - Appellant, v. FRANK L. PERRY, Respondent - Appellee, and NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, Chief District Judge. (5:15-hc-02251-D) Submitted: May 25, 2017 Decided: May 31, 2017 Before MOTZ, THACKER, and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Ronnie Perry, Appellant Pro Se. Jess D. Mekeel, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. Appeal: 17-6092 Doc: 15 Filed: 05/31/2017 Pg: 2 of 4 Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 17-6092 Doc: 15 Filed: 05/31/2017 Pg: 3 of 4 PER CURIAM: Ronnie Perry seeks to appeal the district court’s order dismissing as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 Perry has not made the requisite showing. Pursuant to 28 U.S.C. § 2244(d)(1)(D) (2012), the one-year statute of limitations began to run on February 20, 2012, when the factual predicate for Perry’s claim could have been discovered through due diligence. Perry did not file his § 2254 petition until October 2015, more than two years after the limitations period expired, and his intervening petitions did not toll the limitations period. 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 3 Appeal: 17-6092 Doc: 15 Filed: 05/31/2017 Pg: 4 of 4 adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 4

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