United States v. Avila

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-8118

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

FRANCISCO DURAN AVILA, a/k/a J. Trinidad Cervantez-R,

Defendant – Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:06-cr-00270-JAB-1; 1:08-00715-JAB-DPD)

Submitted: June 1, 2010 Decided: June 7, 2010

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Francisco Duran Avila, Appellant Pro Se. Angela Hewlett Miller,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Francisco Duran Avila seeks to appeal the district

court’s orders accepting the recommendation of the magistrate

judge and denying relief on his 28 U.S.C.A. § 2255 (West Supp.

2009) motion, and denying his motion for reconsideration. The

orders are 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 Avila 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 contentions are adequately presented in the materials

2
before the court and argument would not aid the decisional

process.

DISMISSED