US v. Cervantes-Hernandez

Filing 920081126

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-6098

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CELSO CERVANTES-HERNANDEZ, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (7:03-cr-00075-FL; 7:06-cv-00034-FL)

Submitted:

November 14, 2008

Decided:

November 26, 2008

Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Celso Cervantes-Hernandez, Appellant Pro Se. Assistant United States Attorney, Ethan Raleigh, North Carolina, for Appellee.

Steve R. Matheny, Ainsworth Ontjes,

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Celso Cervantes-Hernandez seeks to appeal the district court's order accepting the recommendation of the magistrate

judge and denying relief on his 28 U.S.C. § 2255 (2000) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. (2000). 28 U.S.C. § 2253(c)(1)

A certificate of appealability will not issue absent "a

substantial showing of the denial of a constitutional right." 28 U.S.C. by § 2253(c)(2) (2000). that A prisoner satisfies would this find

standard

demonstrating

reasonable

jurists

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). that We have independently has reviewed not the record and

conclude showing.

Cervantes-Hernandez

made

the

requisite

Accordingly, we deny a certificate of appealability We dispense with oral argument because

and dismiss the appeal.

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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