United States v. Perez , 405 F. App'x 779 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6924
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AUGUSTINE PEREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. James P. Jones, District
Judge. (6:90-cr-00112-JPJ-MFU-1; 6:10-cv-80266-JPJ-MFU)
Submitted: December 16, 2010 Decided: December 27, 2010
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Augustine Perez, Appellant Pro Se. Ray Burton Fitzgerald, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Ronald Mitchell Huber,
Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Augustine Perez seeks to appeal the district court’s
order construing his filing as a 28 U.S.C.A. § 2255 (West Supp.
2010) motion and denying relief. The order is not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (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
Perez 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
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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