William Dicaprio-Cuozzo v. Gene Johnson, No. 10-7566 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7566 WILLIAM JAY DICAPRIO-CUOZZO, Petitioner - Appellant, v. GENE M. JOHNSON, Corrections, Director of the Virginia Department of Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:10-cv-00157-RBS-FBS) Submitted: January 13, 2011 Decided: January 21, 2011 Before MOTZ, KING, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. William Jay Dicaprio-Cuozzo, Appellant Pro Se. Kathleen Beatty Martin, Senior Assistant Attorney General, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William court s district Jay Dicaprio-Cuozzo order accepting the seeks to appeal recommendation of the the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice issues or judge a U.S.C. § 2253(c)(1) (2006). not issue absent a certificate appealability. 28 A certificate of appealability will substantial constitutional right. of showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 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. 529 U.S. at 484-85. Slack, We have independently reviewed the record and conclude that Dicaprio-Cuozzo 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 2 materials before the court and argument would not aid the decisional process. DISMISSED 3
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