Summary
noting unexhausted ineffective assistance of counsel claim “would be barred either under the successive writ statute in Virginia, Va. Code § 8.01-654(B), if it was raised by a petition for a writ of habeas corpus in state court; or by Virginia's statute of limitations for habeas petitions, Va. Code § 8.01-654”
Summary of this case from Hoskinson v. Dep't of Corr.Opinion
22-7277
04-25-2023
EMMITT PEARSON, JR., Petitioner - Appellant, v. HAROLD W. CLARKE, Respondent - Appellee.
Emmitt Pearson, Jr., Appellant Pro Se.
UNPUBLISHED
Submitted: April 20, 2023
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Rossie David Alston, Jr., District Judge. (1:21-cv-01270-RDA-JFA)
Emmitt Pearson, Jr., Appellant Pro Se.
Before KING and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Emmitt Pearson, Jr., seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2254 petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists could find the district court's assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Pearson 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