United States v. Jeffrey Rios ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7641
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEFFREY RIOS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:10-cr-00017-PJM-1; 8:11-cv-02238-PJM)
Submitted: February 21, 2013 Decided: March 11, 2013
Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Jeffrey Rios, Appellant Pro Se. Adam Kenneth Ake, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Rios seeks to appeal the district court’s
order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2012)
motion, which the district court construed as a motion for
reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). Rios
insists on appeal that his motion, in which he challenges the
effectiveness of counsel and seeks to have his sentence vacated
for resentencing, was filed pursuant to § 2255; therefore, we
review it as such.
An order denying relief under § 2255 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.
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We have independently reviewed the record and conclude
that Rios has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal in
part.
Although we do not agree with the district court’s
construction of the entirety of Rios’ motion as one for
reduction of sentence under § 3582(c)(2), we do agree with the
court’s reasoning in denying that relief. Therefore, to the
extent that Rios’ pleading sought relief available pursuant to
§ 3582(c)(2), we affirm the denial of § 3582(c)(2) relief on the
reasoning of the district court. Rios v. United States, Nos.
8:10-cr-00017-PJM-1; 8:11-cv-02238-PJM (D. Md. Aug. 29, 2012).
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 IN PART;
AFFIRMED IN PART
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