US v. David Perez-Garcia

Filing 920090320

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. justice or judge The order is not appealable unless a circuit issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2006). not issue absent "a

A certificate of appealability will showing of the denial (2006). of a A that the or

substantial 28

constitutional prisoner reasonable

right." this would by

U.S.C. standard

§ 2253(c)(2) by any

satisfies jurists

demonstrating assessment is of

find the

that

constitutional

claims

district

court

debatable

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. certificate dispense of appealability oral argument and Accordingly, we deny a the appeal. and We legal

dismiss the

with

because

facts

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED 2