Demetrius Phillips v. Commonwealth of Virginia, No. 11-6035 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6035 DEMETRIUS W. PHILLIPS, Petitioner Appellant, v. COMMONWEALTH OF VIRGINIA, Respondent Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:10-cv-00013-RLW) Submitted: March 15, 2011 Before MOTZ and Circuit Judge. WYNN, Circuit Decided: Judges, and March 21, 2011 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Demetrius W. Phillips, Appellant Pro Se. Karen Misbach, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Demetrius W. Phillips seeks to appeal the district court s order dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. or judge The order is not appealable unless a circuit justice issues a certificate § 2253(c)(1) (2006). issue absent a appealability. 28 U.S.C. A certificate of appealability will not 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, By failing to challenge on appeal the district court s dispositive procedural ruling, we conclude that Phillips has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. dispense with oral argument because 2 the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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