UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7316
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FERNANDO REYNOSO AVALOS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:10-cr-00134-AJT-1; 1:13-cv-00846-AJT)
Submitted: February 18, 2015 Decided: February 25, 2015
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Alan Hideto Yamamoto, for Appellant. Cindy Chang, Scott Butler
Nussbum, Jeffrey Michael Tharp, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fernando Reynoso Avalos seeks to appeal the district
court’s order construing his 28 U.S.C. § 2255 (2012) motion as a
motion for relief under § 2255 or, in the alternative, as a
motion under Fed. R. Crim. P. 33 for a new trial and denying the
motion.
The portion of the district court’s order denying § 2255
relief to Avalos is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (2012). 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) (2012). 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
Avalos has not made the requisite showing. Accordingly, we deny
a certificate of appealability and dismiss the appeal, in part.
With respect to the portion of the district court’s order
denying relief under Rule 33, we have reviewed the record and
find no reversible error. Accordingly, we affirm the district
court’s order, in part, for the reasons stated by the district
court. United States v. Avalos, Nos. 1:10-cr-00134-AJT-1;
1:13-cv-00846-AJT (E.D. Va. Aug. 19, 2014). We deny Avalos’
motion to appoint counsel and 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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