Gregory Ross v. Superintendent Michael Ball , 564 F. App'x 1 ( 2014 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6825
GREGORY LYNN ROSS,
Petitioner - Appellant,
v.
SUPERINTENDENT MICHAEL BALL,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. L. Patrick Auld,
Magistrate Judge. (1:12-cv-00292-LPA-LPA)
Submitted: December 5, 2013 Decided: January 14, 2014
Before AGEE, KEENAN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gregory Lynn Ross, Appellant Pro Se. Clarence Joe DelForge,
III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Lynn Ross seeks to appeal the magistrate
judge’s order dismissing as untimely his 28 U.S.C. § 2254 (2006)
petition. 1 The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(A) (2006). 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) (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.
1
Due to a clerical error, an incorrect opinion issued on
September 4, 2013. The panel grants rehearing, withdraws the
September 4 opinion, and issues this opinion in its stead. We
liberally construe Ross’ objections to the magistrate judge’s
order as a timely notice of appeal. See 28 U.S.C. § 636(c)
(2006); Fed. R. App. P. 3(c); In re Spence, 541 F.3d 538, 543
(4th Cir. 2008).
2
We have independently reviewed the record and conclude
that Ross has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal. As
a result of our grant of panel rehearing and issuance of this
revised opinion, Ross’ petition for rehearing en banc has been
rendered moot. 2 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
2
We note that the time for filing a petition for panel
and/or en banc rehearing from this revised opinion will run anew
from the reentry of judgment.
3