Eley v. Angelone , 100 F. App'x 212 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7462
CLAYTON ELEY,
Petitioner - Appellant,
versus
RONALD J. ANGELONE, Director of the Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CA-02-631-2)
Submitted: June 10, 2004 Decided: June 16, 2004
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Clayton Eley, Appellant Pro Se. John H. McLees, Jr., 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Unpublished opinions are not binding precedent in this circuit.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:
Clayton Eley seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and dismissing
as untimely filed his petition under 28 U.S.C. § 2254 (2000). An
appeal may not be taken from the final order in a habeas corpus
proceeding unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). When, as here,
a district court dismisses a § 2254 petition solely on procedural
grounds, a certificate of appealability will not issue unless the
petitioner can 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, 484 (2000)). We
have independently reviewed the record and conclude that Eley has
not made the requisite showing. See Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). Accordingly, we deny Eley’s motion to
proceed in forma pauperis, 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.
DISMISSED
- 2 -