Diaz v. Weisner

Filing 920070920

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-7523

SILVANO GUERRA DIAZ, Petitioner - Appellant, versus REGINALD WEISNER, Respondent - Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:06-cv-00081)

Submitted:

August 17, 2007

Decided:

September 20, 2007

Before WILKINSON and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Silvano Guerra Diaz, Appellant Pro Se. Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Silvano Guerra Diaz seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2254 (2000) petition. The

order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2000).

A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." § 2253(c)(2) (2000). that A prisoner satisfies would this 28 U.S.C. standard that by any

demonstrating

reasonable

jurists

find

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. See 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 Diaz has not made the requisite showing. Accordingly, we deny a

certificate of appealability, deny Diaz's motion for appointment of counsel 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

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