US v. Augustine Perez

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UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 6:90-CR-00112-JPJ-MFU-1,6:10-CV-80266-JPJ-MFU Copies to all parties and the district court/agency. [998491464] [10-6924]

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US v. Augustine Perez Doc. 0 Case: 10-6924 Document: 9 Date Filed: 12/27/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6924 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AUGUSTINE PEREZ, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. James P. Jones, District Judge. (6:90-cr-00112-JPJ-MFU-1; 6:10-cv-80266-JPJ-MFU) Submitted: December 16, 2010 Decided: December 27, 2010 Before GREGORY, DUNCAN, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Augustine Perez, Appellant Pro Se. Ray Burton Fitzgerald, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Ronald Mitchell Huber, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-6924 Document: 9 Date Filed: 12/27/2010 Page: 2 PER CURIAM: Augustine Perez seeks to appeal the district court's order construing his filing as a 28 U.S.C.A. 2255 (West Supp. 2010) motion and denying relief. unless a circuit justice or The order is not appealable issues a certificate of judge 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." (2006). prisoner reasonable 28 U.S.C. 2253(c)(2) When the district court denies relief on the merits, a satisfies jurists this would standard find that by the demonstrating district that court's assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief both on procedural the When the district court the prisoner ruling must is grounds, demonstrate that dispositive procedural debatable, and that the motion states a debatable claim of the denial of a constitutional right. We have independently reviewed the Slack, 529 U.S. at 484-85. record and conclude that Perez has not made the requisite showing. a certificate with of appealability argument and Accordingly, we deny the appeal. and We legal dismiss the dispense oral because facts 2 Case: 10-6924 Document: 9 Date Filed: 12/27/2010 Page: 3 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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