Demetrius Smalls v. Joseph McFadden, No. 14-7620 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7620 DEMETRIUS JAROD SMALLS, Petitioner – Appellant, v. JOSEPH MCFADDEN, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:13-cv-02651-RMG) Submitted: March 12, 2015 Decided: March 17, 2015 Before GREGORY, DIAZ, and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Demetrius Jarod Smalls, Appellant Pro Se. James Anthony Mabry, Assistant Attorney General, Donald John Zelenka, Senior Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Demetrius Jarod Smalls seeks to appeal the district court’s orders accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2012) petition and denying his Fed. R. Civ. P. 59(e) motion. appealable unless a circuit certificate of appealability. A certificate of justice The orders are not or judge issues a 28 U.S.C. § 2253(c)(1)(A) (2012). 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 merits, demonstrating district that court’s debatable or a prisoner reasonable assessment wrong. When the district court denies Slack satisfies jurists this would of the v. McDaniel, 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 Smalls has not made the requisite showing. Accordingly, we deny Smalls’ motions for a hearing in district court, to be relieved from order of judgment, and to 2 dismiss the district court judgment, deny a certificate of appealability, and dismiss the appeal. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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