Lamont Dorsey v. Harold Clarke ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6055
LAMONT DORSEY,
Petitioner - Appellant,
v.
HAROLD W. CLARKE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T.S. Ellis, III, Senior District Judge. (1:17-cv-01249-TSE-MSN)
Submitted: July 31, 2018 Decided: August 30, 2018
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Lamont Dorsey, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamont Dorsey seeks to appeal the district court’s order dismissing his 28 U.S.C.
§ 2254 (2012) petition as untimely filed. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). 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) (2012). 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, although Dorsey’s
petition was filed within the one-year limitations period, he has not made the requisite
showing of the denial of a constitutional right because evaluating the credibility of
witnesses is a matter entrusted to the trier of fact, and we will not redetermine the credibility
of a witness on federal habeas review. See Merzbacher v. Shearin, 706 F.3d 356, 364 (4th
Cir. 2013). Accordingly, we deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal. We dispense with oral argument
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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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