US v. Evelio Arroyo-Duarte

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:06-cr-00050-sgw-mfu-3,5:10-cv-80243-sgw-mfu Copies to all parties and the district court/agency. [998443136] [10-6877]

US v. Evelio Arroyo-Duarte

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Case: 10-6877 Document: 6

Date Filed: 10/12/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6877 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. EVELIO ARROYO-DUARTE, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Samuel G. Wilson, District Judge. (5:06-cr-00050-sgw-mfu-3; 5:10-cv-80243-sgwmfu) Submitted: September 30, 2010 Decided: October 12, 2010

Before NIEMEYER, AGEE, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Evelio Arroyo-Duarte, Appellant Pro Se. Donald Ray Wolthuis, Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Evelio Arroyo-Duarte 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. and conclude that Slack,

We have independently reviewed the record Arroyo-Duarte has not made the requisite

showing.

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

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materials

before

the

court

and

argument

would

not

aid

the

decisional process. DISMISSED

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