Grate v. Warden, Red Onion State Prison , 50 F. App'x 640 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7270
THOMAS LEE GRATE, III,
Petitioner - Appellant,
versus
WARDEN, Red Onion State Prison,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CA-02-248-3)
Submitted: November 7, 2002 Decided: November 14, 2002
Before WILKINS and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Thomas Lee Grate, III, Appellant Pro Se. Michael Thomas Judge,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas Lee Grate, III, seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2254 (2000) petition. To
be entitled to a certificate of appealability, Grate must make "a
substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2) (2000). When a district court dismisses solely
on procedural grounds, the petitioner "must demonstrate both (1)
‘that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right,’ and (2) ‘that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.’”
Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v.
McDaniel, 529 U.S. 473 (2000)). Upon examination of Grate’s
petition, we cannot conclude that reasonable jurists would find it
debatable whether the district court correctly concluded the
petition was untimely. 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
the court and argument would not aid the decisional process.
DISMISSED
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