David Malinzak v. State of North Carolina ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6358
DAVID ERNEST MALINZAK,
Petitioner - Appellant,
v.
STATE OF NORTH CAROLINA,
Respondent - Appellee.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:20-cv-00320-WO-LPA)
Submitted: April 14, 2022 Decided: April 26, 2022
Before NIEMEYER, RICHARDSON, and HEYTENS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Ernest Malinzak, Appellant Pro Se. Jonathan Porter Babb, Sr., Special Deputy
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Ernest Malinzak seeks to appeal the district court’s order accepting the
recommendation of the magistrate judge and dismissing as untimely Malinzak’s 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 Malinzak 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 this court and argument would not aid the
decisional process.
DISMISSED
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