Joseph Cobb v. Warden of Perry Correctional, No. 18-6837 (4th Cir. 2018)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6837 JOSEPH GABRIEL COBB, Petitioner - Appellant, v. WARDEN OF PERRY CORRECTIONAL INSTITUTION, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Greenville. Terry L. Wooten, Chief District Judge. (6:17-cv-02755-TLW) Submitted: November 28, 2018 Decided: December 17, 2018 Before KEENAN and RICHARDSON, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Joseph Gabriel Cobb, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joseph Gabriel Cobb seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2012) petition. The district court’s dismissal of Cobb’s § 2254 petition 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 Cobb has not made the requisite showing with regard to the district court’s rejection of his arguments in favor of equitable tolling. ∗ Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are ∗ Cobb does not challenge on appeal the district court’s finding that he failed to file his § 2254 petition within the limitations period set forth in 28 U.S.C. § 2244(d) (2012). 2 adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3