James Smith, Jr. v. Harold Clarke, No. 13-7012 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7012 JAMES A. SMITH, JR., Petitioner - Appellant, v. HAROLD W. CLARKE, Director of the Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis III, Senior District Judge. (1:12-cv-01336-TSE-JFA) Submitted: November 19, 2013 Before WYNN and Circuit Judge. FLOYD, Circuit Decided: November 22, 2013 Judges, and HAMILTON, Senior Dismissed by unpublished per curiam opinion. James A. Smith, Jr., Appellant Pro Se. Elizabeth Catherine Kiernan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James court s order petition. or judge A. Smith, denying relief seeks on to his 28 appeal U.S.C. the district § 2254 (2006) The order is not appealable unless a circuit justice issues a certificate § 2253(c)(1)(A) (2006). issue Jr., 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. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Smith has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately 2 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3