United States v. Gaines

394 F. App'x 3

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6235

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

YVETTE GAINES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis III, Senior District Judge. (1:07-cr-00070-TSE-3; 1:09-cv-01238-TSE)

Submitted: August 26, 2010 Decided: September 1, 2010

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Yvette Gaines, Appellant Pro Se. Erin Marie Velandy, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Yvette Gaines seeks to appeal the district court’s

order dismissing her 28 U.S.C.A. § 2255 (West Supp. 2010) motion

as untimely and the court’s order denying a certificate of

appealability. The orders are 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). 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 Gaines 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

2 before the court and argument would not aid the decisional

process.

DISMISSED