                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1152


OTIS DONALD WITHERSPOON,

                Plaintiff - Appellee,

          v.

COMMONWEALTH OF VIRGINIA; LABRAVIA J. JENKINS, Commonwealth
Attorney,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    T. S. Ellis III, Senior
District Judge. (1:11-cv-00963-TSE-TCB)


Submitted:   May 31, 2012                  Decided:   June 5, 2012


Before KING, DUNCAN, and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Otis Donald Witherspoon, Appellant Pro Se.   Turner Anderson
Broughton, Brendan David O’Toole, WILLIAMS MULLEN, Richmond,
Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

            Otis Donald Witherspoon seeks to appeal the district

court’s order dismissing his civil action attacking his Virginia

state     convictions        on      the       ground      that        the      prosecutor

intentionally delayed prosecuting Witherspoon in order to gain a

tactical advantage over him.                   As Witherspoon concedes in his

informal brief, it is clear under Heck v. Humphrey, 512 U.S.

477, 486 (1994), that his lawsuit should be construed as a 28

U.S.C.    § 2254     (2006)       petition       because    it       attempts    only    to

demonstrate the invalidity of his state convictions.

            To     the   extent      that        the   district       court      construed

Witherspoon’s complaint as a § 2254 petition, it dismissed the

petition    both    as   untimely        and     for   failure       to   exhaust   state

remedies.     The district court’s order is not appealable unless a

circuit justice or judge issues a certificate of appealability.

28   U.S.C.        § 2253(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

petitioner       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

                                             2
denies     relief     on    procedural           grounds,      the     petitioner       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     Witherspoon        has      not     made        the     requisite           showing.

Accordingly,     we    deny       Witherspoon’s      pending         motion     to    appoint

counsel, deny a certificate of appealability, and dismiss the

appeal.     We dispense with oral argument because the facts and

legal    contentions       are     adequately       presented        in   the    materials

before    the   court      and    argument       would    not    aid      the   decisional

process.

                                                                                 DISMISSED




                                             3
