United States v. Johnny Gonzalez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6494

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

JOHNNY ELIAS GONZALEZ, a/k/a Solo,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:08-cr-00134-RJC-DSC-18; 3:14-cv-00234-
RJC)

Submitted: November 17, 2016 Decided: November 21, 2016

Before GREGORY, Chief Judge, and MOTZ, and TRAXLER, Circuit
Judges.

Dismissed by unpublished per curiam opinion.

Johnny Elias Gonzalez, Appellant Pro Se. Adam Christopher
Morris, Kevin Zolot, OFFICE OF THE UNITED STATES ATTORNEY, Jill
Westmoreland Rose, United States Attorney, Charlotte, North
Carolina; Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Johnny Elias Gonzalez seeks to appeal the district court’s

order denying relief on his 28 U.S.C. § 2255 (2012) motion. The

order 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.

We have independently reviewed the record and conclude that

Gonzalez has not made the requisite showing. Accordingly, we

deny Gonzalez’s motion for appointment of counsel, deny a

certificate of appealability, and dismiss the appeal. We

dispense with oral argument because the facts and legal

2
contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

DISMISSED