Tommy Harris, Jr. v. Lewis Smith, No. 13-7187 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7187 TOMMY WAYNE HARRIS, JR., Petitioner - Appellant, v. LEWIS SMITH, Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Frank D. Whitney, Chief District Judge. (1:13-cv-00182-FDW) Submitted: November 15, 2013 Decided: December 18, 2013 Before SHEDD, KEENAN, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Tommy Wayne Harris, Jr., Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tommy Wayne Harris, Jr., seeks to appeal the district court s order dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. or The order is not appealable unless a circuit justice judge issues a certificate § 2253(c)(1)(A) (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. Slack, 529 U.S. at 484-85. On appeal, we confine our review to the issues raised in Harris brief. See 4th Cir. R. 34(b). Because Harris does not challenge the basis for the district court s disposition, he has forfeited appellate review of the court s order. In any event, district court s conclusion that Harris § 2254 petition was untimely. As the we would not find debatable 2 the district court correctly explained, the Supreme Court s recent decisions in Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler v. Cooper, 132 S. Ct. 1376 (2012) did not announce a new rule of constitutional law. Cir. 2012). See In re Perez, 682 F.3d 930, 932-34 (11th Moreover, Harris untimely motion for appropriate relief in state court, which he filed in July 2012, did not serve to toll U.S.C. § 2244. 2000). the one-year statute of limitations under 28 See Minter v. Beck, 230 F.3d 663, 665 (4th Cir. Harris was thus required to file his § 2254 petition by September 16, 2009, but he did not do so until June 27, 2013. Therefore, even if we reached the issue, we would agree with the district court s conclusion that Harris § 2254 petition was untimely. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. DISMISSED 3