United States v. Gena

399 F. App'x 801

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6247

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THOMAS J. GENA, a/k/a Thomas Gena,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:05-cr-00303-CMC-1; 3:09-cv-70029-CMC)

Submitted: October 19, 2010 Decided: October 26, 2010

Before DUNCAN, KEENAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

William Mallory Kent, LAW OFFICE OF WILLIAM MALLORY KENT, Jacksonville, Florida, for Appellant. Anne Hunter Young, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Thomas J. Gena seeks to appeal the district court’s

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2010)

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). 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 Gena has not made the requisite showing.

Accordingly, we deny his motion for a certificate of

appealability and dismiss the appeal. We dispense with oral

argument because the facts and legal contentions are adequately

2 presented in the materials before the court and argument would

not aid the decisional process.

DISMISSED