United States v. Gonzales March

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6265 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. GONZALES MARCH, a/k/a Gun, a/k/a Gon, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:08-cr-00590-CMC-6) Submitted: June 13, 2013 Decided: June 17, 2013 Before NIEMEYER, KING, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Gonzales March, Appellant Pro Se. Jimmie Ewing, James Chris Leventis, Jr., Mark C. Moore, Stanley D. Ragsdale, John David Rowell, Assistant United States Attorneys, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gonzales March seeks to appeal the district court’s order construing his Fed. R. Crim. P. 36 motions as second or successive 28 U.S.C.A. § 2255 (West Supp. 2012) motions and dismissing 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 March has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately 2 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3