United States v. Diaz

330 F. App'x 43

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6155

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CANDELARIO DIAZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Mark S. Davis, District Judge. (4:07-cr-00053-WDK-JEB-1; 4:08-cv-00073-MSD)

Submitted: July 30, 2009 Decided: August 4, 2009

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Candelario Diaz, Appellant Pro Se. Robert Edward Bradenham, II, Assistant United States Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Candelario Diaz seeks to appeal the district court’s

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009)

motion. The order is not appealable unless a circuit justice or

judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (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). A

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that any assessment of the

constitutional claims by the district court is debatable or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable. Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have

independently reviewed the record and conclude that Diaz has not

made the requisite showing. Accordingly, we deny a certificate

of appealability, deny leave to proceed in forma pauperis, deny

Diaz' motion for appointment of counsel, 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