Benjamin Stith v. R. Younce

Opinion

USCA4 Appeal: 23-6902 Doc: 8 Filed: 12/27/2023 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-6902

BENJAMIN L. STITH,

Petitioner - Appellant,

v.

R. YOUNCE, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James P. Jones, Senior District Judge. (7:23-cv-00140-JPJ-PMS)

Submitted: December 19, 2023 Decided: December 27, 2023

Before HARRIS, QUATTLEBAUM, and BENJAMIN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Benjamin L. Stith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-6902 Doc: 8 Filed: 12/27/2023 Pg: 2 of 2

PER CURIAM:

Benjamin Stith seeks to appeal the district court’s order dismissing as untimely his

28 U.S.C. § 2254 petition. See Gonzalez v. Thaler, 564 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. See 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 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 Stith 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