Public-domain · open source
OpenJurist

511 F. App'x 250

Larry Lowry v. Sandra Thomas

U.S. Courts of Appeals

Decided February 26, 2013

This page is marked noindex.

U.S. Courts of Appeals · decided 2013-02-26

Applies 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Slack v. McDaniel · Miller-El v. Cockrell Director Texas Department of Criminal Justice Institutional Division

Decided 2013-02-26

PER CURIAM:

¶1 Larry Dean Lowry seeks to appeal the district court’s order dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit *251 justice or judge issues a certificate of ap-pealability. 28 U.S.C. § 2258(c)(1)(A) (2006). 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) (2006). 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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 484r-85,120 S.Ct. 1595.

¶2 We have independently reviewed the record and conclude that Lowry has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presentéd in the materials before this court and argument would not aid the decisional process.

¶3 DISMISSED.

/511/fappx/250 · .json · Public domain