                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-6871


LIBAN A. JAMA,

                    Petitioner - Appellant,

             v.

HAROLD W. CLARKE, Director,

                    Respondent - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T.S. Ellis, III, Senior District Judge. (1:17-cv-00380-TSE-IDD)


Submitted: December 14, 2017                                Decided: December 27, 2017


Before AGEE, KEENAN, and THACKER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Liban A. Jama, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

       Liban A. Jama seeks to appeal the district court’s order dismissing without

prejudice his 28 U.S.C. § 2254 (2012) petition for failure to exhaust state court

remedies. 1 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 conclude that the district court’s procedural ruling is debatable because a state

procedural rule likely would bar consideration of Jama’s claim if presented to the state

court. Hedrick v. True, 443 F.3d 342, 364 (4th Cir. 2006). Nevertheless, we have

independently reviewed the record and conclude that an alternative procedural ground for

dismissal renders this appeal futile: Jama’s petition is barred by the one-year statute of


       1
         The district court’s order is final and appealable because the defect identified by
the district court must be cured by something more than an amendment to the allegations
in the § 2254 petition. Goode v. Cent. Va. Legal Aid Soc’y, 807 F.3d 619, 623-24 (4th
Cir. 2015).


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limitations. See 28 U.S.C. § 2244(d)(1) (2012). The district court provided Jama an

opportunity to explain why his petition was not time-barred, see Hill v. Braxton, 277 F.3d

701, 705-08 (4th Cir. 2002), and Jama argued that, if his petition was untimely filed, then

its untimeliness should be excused because he is actually innocent of his convictions, see

McQuiggin v. Perkins, 569 U.S. 383, ___, 133 S. Ct. 1924, 1928 (2013). But, Jama’s

argument does not rely on “new evidence” demonstrating his innocence. 2 Id. (internal

quotation marks omitted). Consequently, we conclude that the untimely filing of Jama’s

petition cannot be excused.

       Accordingly, we deny Jama leave to proceed in forma pauperis, deny a certificate

of appealability, and dismiss the appeal. See Reid v. Angelone, 369 F.3d 363, 372 n.5

(4th Cir. 2004), abrogated on other grounds by United States v. McRae, 793 F.3d 392

(4th Cir. 2015). 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




       2
         Jama cited a recent decision by the Supreme Court of Virginia as “new
evidence,” but that decision does not constitute new evidence. See Schlup v. Delo, 513
U.S. 298, 324 (1995).


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