Elbert Smith v. Harold Clarke, No. 20-7498 (4th Cir. 2021)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-7498 ELBERT SMITH, Petitioner - Appellant, v. HAROLD W. CLARKE, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James P. Jones, District Judge. (7:19-cv-00523-JPJ-PMS) Submitted: March 18, 2021 Decided: March 22, 2021 Before WILKINSON and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Elbert Smith, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Elbert Smith, a Virginia inmate, seeks to appeal the district court’s order dismissing as untimely his 28 U.S.C. § 2254 petition. See Gonzalez v. Thaler, 565 U.S. 134, 148 & n.9 (2012) (explaining that § 2254 petitions are subject to one-year statute of limitations, running from latest of four commencement dates enumerated in 28 U.S.C. § 2244(d)(1)). The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 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). When, as here, 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. Gonzalez, 565 U.S. at 140-41 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We have independently reviewed the record and conclude that Smith has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny Smith’s motion for the appointment of counsel, 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 2

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