Benjamin Fawley v. Gene Johnson

692 F. App'x 736

Opinion

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Benjamin William Fawley seeks to appeal the district court’s order dismissing as untimely and, alternatively, denying as without merit his Fed. R. Civ. P. 60(b) motion for reconsideration of its prior order dismissing as time-barred his 28 U.S.C. § 2254 (2012) petition. 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); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Faw-ley has not made the requisite showing.

Accordingly, we deny a certificate of appealability, deny Pawley’s motions for a delayed appeal, to expand the record, to address the time bar, to enter facts and evidence, and to raise actual harm, 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