Deon Carter v. Commonwealth of Virginia, No. 21-6993 (4th Cir. 2021)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 21-6993 DEON CARTER, Petitioner - Appellant, v. COMMONWEALTH OF VIRGINIA, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:09-cv-00121-HEH) Submitted: November 23, 2021 Decided: November 30, 2021 Before NIEMEYER, FLOYD, and RUSHING, Circuit Judges. Dismissed by unpublished per curiam opinion. Deon Carter, Appellant Pro Se. Leanna Catherine Minix, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Deon Carter seeks to appeal the district court’s order denying as untimely his Fed. R. Civ. P. 60(b) motion for relief from the district court’s 2010 order denying his 28 U.S.C. § 2254 petition as barred by the statute of limitations. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). See generally United States v. McRae, 793 F.3d 392, 397-400 & n.7 (4th Cir. 2015). 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 the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists could find the district court’s assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We have independently reviewed the record and conclude that Carter has not made the requisite showing. Accordingly, we deny a certificate of appealability 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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