Filed: Aug. 28, 2018
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6168 JOHN JOSEPH ZINKAND, Petitioner - Appellant, v. CARLOS HERNANDEZ, Supt. of Avery Mitchell Correctional Institution, et al., Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Frank D. Whitney, Chief District Judge. (1:17-cv-00279-FDW) Submitted: August 23, 2018 Decided: August 28, 2018 Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senio
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6168 JOHN JOSEPH ZINKAND, Petitioner - Appellant, v. CARLOS HERNANDEZ, Supt. of Avery Mitchell Correctional Institution, et al., Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Frank D. Whitney, Chief District Judge. (1:17-cv-00279-FDW) Submitted: August 23, 2018 Decided: August 28, 2018 Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6168
JOHN JOSEPH ZINKAND,
Petitioner - Appellant,
v.
CARLOS HERNANDEZ, Supt. of Avery Mitchell Correctional Institution, et al.,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Frank D. Whitney, Chief District Judge. (1:17-cv-00279-FDW)
Submitted: August 23, 2018 Decided: August 28, 2018
Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
John Joseph Zinkand, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Joseph Zinkand seeks to appeal the district court’s order dismissing as
untimely his 28 U.S.C. § 2254 (2012) petition. 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 Zinkand has not
made the requisite showing. Accordingly, we deny a certificate of appealability, deny
Zinkand’s motion for appointment of counsel, 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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