United States of America v. Antwan Harris

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6445
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTWAN HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cr-00247-BO-1; 5:13-cv-00703-BO)
Submitted: August 22, 2014 Decided: August 29, 2014
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Antwan Harris, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Antwan Harris seeks to appeal the district court’s
orders dismissing as untimely his 28 U.S.C. § 2255 (2012) motion
and denying his motion for reconsideration. The orders are not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (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 has
denied a § 2255 motion on procedural grounds, the movant must
demonstrate both that: (1) “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right” and (2) “jurists of reason
would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
A district court is “permitted, but not obliged, to
consider, sua sponte, the timeliness of a . . . prisoner’s
habeas petition.” Day v. McDonough, 547 U.S. 198, 209 (2006);
see Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002). Before
doing so, however, “a court must accord the parties fair notice
and an opportunity to present their positions.” Day, 547 U.S.
at 210; see Hill, 277 F.3d at 707. The court also must consider

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the prejudice to the movant and the interests of justice prior
to sua sponte dismissing a § 2255 motion as untimely. Day, 547
U.S. at 210.
The district court in this case failed to accord the
parties a meaningful opportunity, prior to its sua sponte
dismissal, to respond to its finding that Harris’ § 2255 motion
was untimely. Further, the court did not consider the prejudice
to Harris or the interests of justice in making its decision.
Thus, we conclude that Harris has demonstrated that reasonable
jurists would find debatable the district court’s procedural
ruling.
We have, however, independently reviewed the record
and conclude that Harris failed to demonstrate that “jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right.” Slack,
529 U.S. at 484; see Miller-El v. Cockrell, 537 U.S. 322, 336-37
(2003); Reid v. True, 349 F.3d 788, 797 (4th Cir. 2003). We
therefore 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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