                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-7727


DAVID F. EATON,

                  Petitioner - Appellant,

          v.

HAROLD W. CLARKE, Director, VDOC,

                  Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:11-cv-00834-MHL)


Submitted:   January 22, 2013               Decided: January 25, 2013


Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David F. Eaton, Appellant Pro Se.     Robert H. Anderson, III,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 David F. Eaton seeks to appeal the magistrate judge’s

order      dismissing          as     untimely       his    28    U.S.C.       §    2254     (2006)

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) (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

relief      is        denied    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       relief    is     denied       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 Eaton has not made the requisite showing.                                 Accordingly, we

deny a certificate of appealability and dismiss the appeal.                                           We


       *
        The parties consented to the jurisdiction                                           of        the
magistrate judge pursuant to 28 U.S.C. § 636(c) (2006).



                                                   2
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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