Earnest v. Davis

Full title: WESLEY BRIAN EARNEST, Petitioner - Appellant, v. KEITH W. DAVIS, Warden…

Court: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Date published: Feb 23, 2021

No. 20-7531 (4th Cir. Feb. 23, 2021)

Opinion

No. 20-7531

02-23-2021

WESLEY BRIAN EARNEST, Petitioner - Appellant, v. KEITH W. DAVIS, Warden; HAROLD W. CLARKE, Director Virginia Department of Corrections, Respondents - Appellees.

Wesley Brian Earnest, Appellant Pro Se.

PER CURIAM

UNPUBLISHED

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Elizabeth Kay Dillon, District Judge. (7:18-cv-00595-EKD-JCH) Before NIEMEYER, KING, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Wesley Brian Earnest, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Wesley Brian Earnest 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 Earnest has not made the requisite showing. Accordingly, although we grant Earnest's motion to exceed length limitations for the informal brief, we deny his motions for an evidentiary hearing and 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