Daryll Shumake v. Commonwealth of Virginia

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-7556

DARYLL SHUMAKE,

Petitioner - Appellant,

v.

COMMONWEALTH OF VIRGINIA,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:18-cv-01170-LMB-MSN)

Submitted: February 10, 2020 Decided: February 20, 2020

Before GREGORY, Chief Judge, and NIEMEYER and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Daryll Keith Shumake, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:
Daryll Keith Shumake seeks to appeal the district court’s order dismissing as
untimely his 28 U.S.C. § 2254 (2018) 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)
(2018)). 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) (2018). 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) (2018). 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 Shumake has not
made the requisite showing. Accordingly, we deny a certificate of appealability, deny his
pending motions, deny leave to proceed in forma pauperis, and dismiss the appeal. We
dispense with oral argument because the facts and legal contentions are adequate l y
presented in the materials before this court and argument would not aid the decisional
process.
DISMISSED