Lamont Dorsey v. Harold Clarke, No. 18-6055 (4th Cir. 2018)

Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6055 LAMONT DORSEY, Petitioner - Appellant, v. HAROLD W. CLARKE, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:17-cv-01249-TSE-MSN) Submitted: July 31, 2018 Decided: August 30, 2018 Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Lamont Dorsey, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lamont Dorsey seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2254 (2012) petition as untimely filed. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). 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). 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 (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, although Dorsey’s petition was filed within the one-year limitations period, he has not made the requisite showing of the denial of a constitutional right because evaluating the credibility of witnesses is a matter entrusted to the trier of fact, and we will not redetermine the credibility of a witness on federal habeas review. See Merzbacher v. Shearin, 706 F.3d 356, 364 (4th Cir. 2013). Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. 2 We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3