US v. Israel Hernandez-Hernandez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 5:07-cr-00063-gec-mfu-12,5:10-cv-80283-gec-uu. Copies to all parties and the district court/agency. [998513018] [10-7594]

Case: 10-7594

Document: 6

Date Filed: 01/28/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7594

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISRAEL HERNANDEZ-HERNANDEZ,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief
District Judge.
(5:07-cr-00063-gec-mfu-12; 5:10-cv-80283-gecuu)

Submitted:

January 18, 2011

Decided:

January 28, 2011

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Israel Hernandez-Hernandez, Appellant Pro Se.
Donald Ray
Wolthuis, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-7594

Document: 6

Date Filed: 01/28/2011

Page: 2

PER CURIAM:
Israel

Hernandez-Hernandez

seeks

to

appeal

the

district court’s order dismissing as untimely his 28 U.S.C.A.
§ 2255 (West Supp. 2010) motion.
unless

a

circuit

appealability.

justice

or

The order is not appealable

judge

issues

a

28 U.S.C. § 2253(c)(1) (2006).

certificate

of

A certificate of

appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2006).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner

satisfies

this

jurists

would

reasonable

standard
find

by

that

demonstrating

the

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

demonstrate

on

both

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

ruling

must
is

debatable, and that the motion states a debatable claim of the
denial of a constitutional right.
We

have

independently

Hernandez-Hernandez

reviewed

has

not

the
made

Slack, 529 U.S. at 484-85.
record
the

and

conclude

requisite

that

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: 10-7594

before

the

court

Document: 6

and

Date Filed: 01/28/2011

argument

would

not

aid

Page: 3

the

decisional

process.
DISMISSED

3