David Rogers v. Reuben Young, No. 14-6825 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6825 DAVID HENRY ROGERS, Petitioner - Appellant, v. REUBEN F. YOUNG, Respondent - Appellee. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:13-cv-00842-CCE-LPA) Submitted: September 25, 2014 Decided: September 30, 2014 Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. David Henry Rogers, Appellant Pro Se. Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Henry Rogers appeals the district court s orders denying his 28 U.S.C. § 2254 (2012) petition and denying his motion for reconsideration. First, Rogers We dismiss the appeal. did not timely court s order denying his § 2254 petition. appeal the district Absent circumstances warranting tolling, parties are accorded thirty days after the entry of the district court s final judgment or order to note an appeal, Fed. R. App. P. 4(a)(1)(A), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6). timely filing of a notice jurisdictional requirement. of appeal in a civil [T]he case is a Bowles v. Russell, 551 U.S. 205, 214 (2007). The district court s order denying Rogers § 2254 petition was entered on the docket on December 13, 2013. Rogers did not timely file his motion for reconsideration, nor did he obtain an extension or reopening of the appeal period. Accordingly, Rogers notice of appeal, filed approximately five months after the denial of his § 2254 petition, was untimely. * * For the purpose of this appeal, we assume that the date appearing on the notice of appeal, May 12, 2014, is the earliest date it could have been properly delivered to prison officials for mailing to the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266, 276 (1988). 2 Accordingly, we dismiss Rogers appeal of the denial of his § 2254 petition for lack of jurisdiction. Moreover, to the extent Rogers appeals the denial of his motion for reconsideration, he fails to show his entitlement to a certificate of appealability. (2012). 28 U.S.C. § 2253(c)(1)(A) A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district merits, that court s debatable or a prisoner reasonable assessment wrong. When the district court denies satisfies jurists would of the v. McDaniel, Slack this standard find constitutional 529 U.S. by that the claims is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). 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 Rogers has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the remainder of the appeal. dispense with oral argument because 3 the facts and We legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 4
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