David Eaton v. Harold Clarke, No. 12-7727 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7727 DAVID F. EATON, Petitioner - Appellant, v. HAROLD W. CLARKE, Director, VDOC, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, Magistrate Judge. (3:11-cv-00834-MHL) Submitted: January 22, 2013 Decided: January 25, 2013 Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. David F. Eaton, Appellant Pro Se. Robert H. Anderson, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David F. Eaton seeks to appeal the magistrate judge s order dismissing petition. * as untimely his 28 U.S.C. § 2254 The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 2253(c)(1)(A) (2006). issue absent a is standard that denied by the on showing of the denial of 28 U.S.C. § 2253(c)(2) (2006). the demonstrating district 28 U.S.C. § A certificate of appealability will not substantial constitutional right. relief (2006) merits, that court s a prisoner reasonable assessment of When satisfies jurists the a would this find constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 Cockrell, (2000); (2003). see When Miller-El relief is v. denied on 537 U.S. procedural 322, 336-38 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 Eaton has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. * The parties consented to the jurisdiction magistrate judge pursuant to 28 U.S.C. § 636(c) (2006). 2 of We the dispense with contentions are oral argument adequately because presented in the the facts and legal materials before this court and argument would not aid the decisional process. DISMISSED 3
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