US v. Frank Esquivel

Filing 920100623

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7684

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANK ESQUIVEL, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:05-cr-00026-F-1; 5:08-cv-00281-F)

Submitted:

June 17, 2010

Decided:

June 23, 2010

Before MOTZ and Circuit Judge.

KING,

Circuit

Judges,

and

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Frank Esquivel, Appellant Pro Se. Rudolf A. Renfer, Jr., Assistant United States Attorney, Kimberly Ann Moore, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Frank Esquivel seeks to appeal the district court's order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2010) motion. judge The order is not appealable unless a circuit justice or issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2006). issue absent "a

A certificate of appealability will not showing of the denial of a

substantial

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. 484 (2000); see Miller-El v. Slack v. McDaniel, 529 U.S. 473, 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. 529 U.S. at 484-85. Slack,

We have independently reviewed the record

and conclude that Esquivel 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

3