John Russell Tomikel v. HAROLD W. CLARKE, Director of the Virginia Department of Corrections

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-7513

JOHN RUSSELL TOMIKEL,

Petitioner - Appellant,

v.

HAROLD W. CLARKE, Director of the Virginia Department of Corrections,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, Chief District Judge. (2:18-cv-00636-MSD-DEM)

Submitted: February 20, 2020 Decided: February 25, 2020

Before GREGORY, Chief Judge, RUSHING, Circuit Judge, and TRAXLER, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

John Russell Tomikel, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:
John Russell Tomikel seeks to appeal the district court’s order accepting the
recommendation of the magistrate judge and dismissing as untimely Tomikel’s 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.
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 Tomikel 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