Jason Marshman v. Harold Clarke

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 10, 2019
• Docket: 19-6016
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-6016

JASON SCOTT MARSHMAN,

Petitioner - Appellant,

v.

HAROLD W. CLARKE,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Elizabeth Kay Dillon, District Judge. (7:18-cv-00387-EKD-RSB)

Submitted: April 4, 2019 Decided: April 10, 2019

Before NIEMEYER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Jason Scott Marshman, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Jason Scott Marshman seeks to appeal the district court’s order dismissing without

prejudice his 28 U.S.C. § 2254 (2012) petition as untimely. * 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). 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

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (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.

We have independently reviewed the record and conclude that Marshman has not

made the requisite showing. Accordingly, we deny a certificate of appealability, deny

leave to proceed in forma pauperis, 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

* We have jurisdiction over this appeal because the district court dismissed the petition for defects that could not be cured by amendment. See Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 623-24 (4th Cir. 2015).