Jason Marshman v. Harold Clarke, No. 19-6016 (4th Cir. 2019)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-6016 JASON SCOTT MARSHMAN, Petitioner - Appellant, v. HAROLD W. CLARKE, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Elizabeth Kay Dillon, District Judge. (7:18-cv-00387-EKD-RSB) Submitted: April 4, 2019 Decided: April 10, 2019 Before NIEMEYER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Jason Scott Marshman, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jason Scott Marshman seeks to appeal the district court’s order dismissing without prejudice his 28 U.S.C. § 2254 (2012) petition as untimely. * 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 Marshman has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. 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 * We have jurisdiction over this appeal because the district court dismissed the petition for defects that could not be cured by amendment. See Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 623-24 (4th Cir. 2015). 2
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