United States v. Vargas

425 F. App'x 256

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 11-6038

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MANUEL MEICHOR VARGAS,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cr-01504-RBH-2; 4:09-cv-70110-RBH)

Submitted: April 21, 2011 Decided: April 27, 2011

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Manuel Meichor Vargas, Appellant Pro Se. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Manuel Meichor Vargas seeks to appeal the district

court’s order denying his motion for reconsideration of the

dismissal of his 28 U.S.C.A. § 2255 (West Supp. 2010) motion as

untimely. The order is not appealable unless a circuit justice

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

§ 2253(c)(1) (2006); see Reid v. Angelone, 369 F.3d 363, 369

(4th Cir. 2004). 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 Vagras 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