Calvin Sizemore v. Harold Clarke

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 29, 2022
• Docket: 22-6520
• Status: Unpublished

Opinion

USCA4 Appeal: 22-6520 Doc: 8 Filed: 11/29/2022 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6520

CALVIN EDDIE SIZEMORE,

Petitioner - Appellant,

v.

HAROLD CLARKE, Director,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James P. Jones, Senior District Judge. (7:21-cv-00331-JPJ-PMS)

Submitted: November 22, 2022 Decided: November 29, 2022

Before HARRIS and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Calvin Eddie Sizemore, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6520 Doc: 8 Filed: 11/29/2022 Pg: 2 of 2

PER CURIAM:

Calvin Eddie Sizemore 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 Sizemore 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