United States v. Perez-Garcia

318 F. App'x 229

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8087

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID PEREZ-GARCIA,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Lyle E. Strom, Senior District Judge. (3:01-cr-00036-RLV-1; 3:04-cv-00429-LES)

Submitted: March 17, 2009 Decided: March 20, 2009

Before TRAXLER, KING, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Perez-Garcia, Appellant Pro Se. Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

David Perez-Garcia seeks to appeal the district

court’s order construing his Fed. R. Civ. P. 15(c)(2) motion as

a successive 28 U.S.C.A. § 2255 (West Supp. 2008) motion and

denying relief. 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 Perez-Garcia

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