US v. Yvette Gaines

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00070-TSE-3,1:09-cv-01238-TSE. Copies to all parties and the district court/agency. [998416365] [10-6235]

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US v. Yvette Gaines Doc. 0 Case: 10-6235 Document: 10 Date Filed: 09/01/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6235 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. YVETTE GAINES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis III, Senior District Judge. (1:07-cr-00070-TSE-3; 1:09-cv-01238-TSE) Submitted: August 26, 2010 Decided: September 1, 2010 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Yvette Gaines, Appellant Pro Se. Erin Marie Velandy, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-6235 Document: 10 Date Filed: 09/01/2010 Page: 2 PER CURIAM: Yvette Gaines seeks to appeal the district court's order dismissing her 28 U.S.C.A. § 2255 (West Supp. 2010) motion as untimely and the court's order denying a certificate of appealability. justice or The orders are not appealable unless a circuit issues a certificate of appealability. 28 judge U.S.C. § 2253(c)(1) (2006). not issue absent "a A certificate of appealability will 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 Gaines 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 Case: 10-6235 Document: 10 Date Filed: 09/01/2010 Page: 3 before the court and argument would not aid the decisional process. DISMISSED 3

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