                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-6090


DONTE JAMAR GWYNN,

                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, District
Judge. (2:13-cv-00074-MSD-TEM)


Submitted:   May 28, 2014                 Decided:   June 26, 2014


Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Donte Jamar Gwynn, Appellant Pro Se. Steven Andrew Witmer,
Senior Assistant Attorney General, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Donte Jamar Gwynn seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

dismissing his 28 U.S.C. § 2254 (2012) petition as untimely.

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    Gwynn    has     not   made     the   requisite      showing.       A   one-year

limitations period applies to the filing of § 2254 petitions

under the Antiterrorism and Effective Death Penalty Act of 1996.

28     U.S.C.    § 2244(d)        (2012).           The    limitations      period      is

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statutorily tolled for the time during which a properly filed

application for state collateral review is pending.                                 28 U.S.C.

§ 2244(d)(2).          The limitations period may be equitably tolled

only    when     a   petitioner        demonstrates          “(1)     that    he    has   been

pursuing his rights diligently, and (2) that some extraordinary

circumstance         stood   in   his      way       and   prevented     timely      filing.”

Holland     v.   Florida,        130   S.    Ct.      2549,     2562   (2010)       (internal

quotation marks omitted).

               On appeal, Gwynn does not challenge the calculations

of the one-year limitations period.                        He appears to argue that he

is entitled to equitable tolling because the Supreme Court of

Virginia did not inform him of his federal filing deadline when

it refused the appeal of his state habeas petition on August 8,

2012.       Gwynn did not present this contention to the district

court, and thus we may not consider it for the first time on

appeal, absent certain limited circumstances not present here.

See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993)

(“[I]ssues raised for the first time on appeal generally will

not    be   considered       .    .    .    [unless]        refusal    to     consider       the

newly-raised issue would be plain error or would result in a

fundamental miscarriage of justice.”).

               In any event, Gwynn has not shown that the district

court’s dispositive procedural ruling is debatable.                                The record

reflects     that     Gwynn’s     conviction           became    final       on    January    5,

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2011, ninety days after his direct appeal was refused by the

Supreme Court of Virginia.           The limitations period ran for 237

days,   until    Gwynn    executed    his    properly    filed   state      habeas

petition on August 30, 2011.                The Supreme Court of Virginia

refused Gwynn’s petition for appeal of his state habeas petition

on August 8, 2012.         The remainder of his limitations began to

run, and the period expired 128 days later on December 14, 2012.

Because Gwynn’s federal habeas petition was not executed until

January 25, 2013, see Houston v. Lack, 487 U.S. 266 (1988), the

petition was not timely filed.

           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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