Jordan v. Johnson, (4th Cir. 2011)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6115

MICHAEL TYRONE JORDAN,

Petitioner - Appellant,

v.

GENE M. JOHNSON, Director of the Department of Corrections,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Richard L. Williams, Senior

District Judge. (3:10-cv-00274-RLW)

Submitted: April 21, 2011 Decided: April 27, 2011

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael Tyrone Jordan, Appellant Pro Se. Josephine Frances

Whalen, Assistant Attorney General, Richmond, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael Tyrone Jordan seeks to appeal the district court's order dismissing as untimely his 28U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2006). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28U.S.C. § 2253(c)(2) (2006). 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 Jordan 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 the court and argument would not aid the decisional process.