United States v. Diaz-Gutierrez

                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-7328


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALEJANDRO DIAZ-GUTIERREZ,

                Defendant - Appellant,


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Frank D. Whitney,
District Judge. (3:07-cr-00114-FDW-CH-1; 3:10-cv-00330-FDW)


Submitted:   April 12, 2011                       Decided:   May 20, 2011


Before KING and    SHEDD,     Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Alejandro Diaz-Gutierrez, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina,
Kenneth Michel Smith, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Alejandro Diaz-Gutierrez seeks to appeal the district

court’s order denying relief on his 28 U.S.C.A. § 2255 (West

Supp.    2010)    motion.      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    Diaz-Gutierrez       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




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materials   before   the   court   and   argument   would   not    aid   the

decisional process.

                                                                  DISMISSED




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