United States v. Arias

74 F. App'x 278

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 10, 2003
• Docket: 03-6974
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6974

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FABIO AUGUSTO ARIAS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District Judge. (CR-95-97)

Submitted: August 28, 2003 Decided: September 10, 2003

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Fabio Augusto Arias, Appellant Pro Se. Kevin Michael Comstock, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Fabio Augusto Arias seeks to appeal the district court’s order

dismissing as untimely his motion filed under 28 U.S.C. § 2255

(2000). The order is not appealable unless a circuit justice or

judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)

(2000). 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) (2000). A prisoner satisfies this standard by

demonstrating that reasonable jurists would find that his

constitutional claims are debatable and that any dispositive

procedural rulings by the district court are also debatable or

wrong. See Miller-El v. Cockrell, 537 U.S. 322, , 123 S. Ct.

1029, 1040 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683 (4th Cir.), cert. denied, 534 U.S.

941 (2001). We have independently reviewed the record and conclude

that Arias 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 contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

DISMISSED