Opinion
No. 16-7392
02-22-2017
DESMON ELIABA, Petitioner- Appellant, v. HAROLD CLARKE, Director, Virginia DOC, Respondent - Appellee.
Desmon Eliaba, Appellant Pro Se.
UNPUBLISHED Appeal from the United States District Court for the Eastern District of Virginia, at Richmond.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) 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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Desmon Eliaba seeks to appeal the magistrate judge'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.
The parties consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c) (2012). --------
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 adequately presented in the materials before this court and argument would not aid the decisional process.
DISMISSED