United States v. Hector D. Portillo

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-6501 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HECTOR DAVID PORTILLO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:95-cr-00522-LMB-1; 1:98-cv-00434-LMB) Submitted: June 14, 2012 Decided: June 19, 2012 Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Hector David Portillo, Appellant Pro Se. Bernard James Apperson, III, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hector David Portillo seeks to appeal the district court’s order treating his motion to amend his original 28 U.S.C.A. § 2255 (West Supp. 2011) motion as a successive § 2255 motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (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 Portillo 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 2 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3