United States v. Walter Henriquez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6960

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

WALTER RUIZ HENRIQUEZ, a/k/a Walter Alexander Ruiz, a/k/a
Carlos,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:06-cr-00232-FL-1; 5:11-cv-00142-FL)

Submitted: August 22, 2012 Decided: August 27, 2012

Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Walter Ruiz Henriquez, Appellant Pro Se. Imelda Jean Pate, Seth
Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Walter Ruiz Henriquez seeks to appeal the district

court’s order accepting the recommendation of the magistrate

judge and dismissing as untimely his 28 U.S.C.A. § 2255 (West

Supp. 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) (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 Henriquez has not made the requisite showing. Accordingly,

we deny Henriquez’s motion for a certificate of appealability

and dismiss the appeal. We dispense with oral argument because

the facts and legal contentions are adequately presented in the

2
materials before the court and argument would not aid the

decisional process.

DISMISSED