United States v. Penaloza-Banos

385 F. App'x 338

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 28, 2010
• Docket: 10-6412
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6412

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PIOQUINTO PENALOZA-BANOS, a/k/a Jose Luis Banos Aydaya, a/k/a Jose Luis Banos, a/k/a Daniel Banos Andaya, a/k/a Pioquinto Banos, a/k/a Michael Burciaga, a/k/a Pioquinto Banos-Andalla,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:06-cr-00434-WO-2; 1:08-cv-00534-WO-WWD)

Submitted: June 17, 2010 Decided: June 28, 2010

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

Dismissed by unpublished per curiam opinion.

Pioquinto Penaloza-Banos, Appellant Pro Se. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pioquinto Penaloza-Banos seeks to appeal the district

court’s order accepting the recommendation of the magistrate

judge and denying relief on his 28 U.S.C.A. § 2255 (West Supp.

2010) motion, and its subsequent order denying reconsideration.

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 Penaloza-Banos 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

2 contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

DISMISSED