US v. Wilfredo Baire

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:05-cr-00478-TSE-1,1:09-cv-00155-TSE Copies to all parties and the district court/agency. [998453763] [10-6802]

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US v. Wilfredo Baire Doc. 0 Case: 10-6802 Document: 8 Date Filed: 10/27/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6802 UNITED STATES OF AMERICA, Plaintiff Appellee, v. WILFREDO MONTOYA BAIRES, a/k/a Nino, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:05-cr-00478-TSE-1; 1:09-cv-00155-TSE) Submitted: October 19, 2010 Decided: October 27, 2010 Before DUNCAN, KEENAN, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Wilfredo Montoya Baires, Appellant Pro Se. Morris Rudolph Parker, Jr., Assistant United States Attorney, Patrick Friel Stokes, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-6802 Document: 8 Date Filed: 10/27/2010 Page: 2 PER CURIAM: Wilfredo Montoya Baires seeks to appeal the district court's order denying relief on his 28 U.S.C.A. 2255 (West Supp. 2010) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. 2253(c)(1) (2006). A certificate of appealability will not issue absent "a substantial showing of the denial of a 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 Baires 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: 10-6802 Document: 8 Date Filed: 10/27/2010 Page: 3 before the court and argument would not aid the decisional process. DISMISSED 3

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