Michael Joseph Formica v. HAROLD CLARKE, Director

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6889
MICHAEL JOSEPH FORMICA,
Petitioner - Appellant,
v.
HAROLD CLARKE, Director,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Michael F. Urbanski, Chief District Judge. (7:16-cv-00342-MFU-RSB)
Submitted: October 19, 2017 Decided: October 24, 2017
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Formica, Appellant Pro Se. Lauren Catherine Campbell, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael Joseph Formica seeks to appeal the district court’s order dismissing his
28 U.S.C. § 2254 (2012) petition as time-barred. 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 Formica has not
made the requisite showing. Accordingly, we deny a certificate of appealability, deny
leave to proceed in forma pauperis, 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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