United States v. Hector McGurk ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7642
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HECTOR RUBEN MCGURK, a/k/a Ruben, a/k/a El Mechanico,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:02-cr-00190-FDW-1; 3:09-cv-00312-FDW)
Submitted: February 8, 2013 Decided: March 27, 2013
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Hector Ruben McGurk, Appellant Pro Se. Adam Christopher Morris,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina;
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hector Ruben McGurk seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2012) motion. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(B) (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 (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 motion 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 McGurk 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
2
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
3