US v. Frank Esquivel

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 5:05-cr-00026-F-1,5:08-cv-00281-F. Copies to all parties and the district court/agency. [998780112]. Mailed to: Frank Esquivel. [11-7251]

Appeal: 11-7251

Document: 9

Date Filed: 02/03/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7251

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK ESQUIVEL,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:05-cr-00026-F-1; 5:08-cv-00281-F)

Submitted:

January 31, 2012

Decided:

February 3, 2012

Before NIEMEYER, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Frank Esquivel, Appellant Pro Se.
Jennifer P. May-Parker,
Rudolf A. Renfer, Jr., Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Document: 9

Date Filed: 02/03/2012

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PER CURIAM:
Frank Esquivel seeks to appeal the district court’s
order

denying

his

Fed.

R.

Civ.

P.

60(b)

motion

for

reconsideration of the district court’s order denying relief on
his 28 U.S.C.A. § 2255 (West Supp. 2011) motion.
not

appealable

unless

a

circuit

certificate of appealability.
A certificate

of

justice

or

The order is

judge

issues

a

28 U.S.C. § 2253(c)(1)(B) (2006).

appealability

will

not

issue

absent

“a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2006).
relief

on

the

demonstrating
district
debatable

merits,
that

court’s
or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

U.S.

the

claims

constitutional
529

by

is

473,

484

(2000); see Miller-El v. 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.

Slack, 529 U.S.

at

the

484-85.

conclude

that

We

have

Esquivel

independently
has

not

reviewed

made

the

record

requisite

and

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

Appeal: 11-7251

before

Document: 9

Date Filed: 02/03/2012

the

and

court

argument

would

Page: 3 of 3

not

aid

the

decisional

process.

DISMISSED

3