US v. Arnoldo Gamboa

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:08-cr-00151-2,2:12-cv-01175 Copies to all parties and the district court/agency. [999156454]. Mailed to: Arnoldo Gamboa. [13-6648]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6648

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARNOLDO AVITA GAMBOA, a/k/a Angel Martinez, a/k/a Tony,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
John T. Copenhaver,
Jr., District Judge. (2:08-cr-00151-2; 2:12-cv-01175)

Submitted:

July 18, 2013

Decided:

July 23, 2013

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Arnoldo Avita Gamboa, Appellant Pro Se.
Joshua Clarke Hanks,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Arnoldo
court’s

order

Avita

Gamboa

accepting

the

seeks

to

appeal

recommendation

of

the
the

district

magistrate

judge and denying relief on his 28 U.S.C.A. § 2255 (West Supp.
2013) motion.
justice

or

The order is not appealable unless a circuit

judge

issues

a

certificate

U.S.C. § 2253(c)(1)(B) (2006).

of

appealability.

28

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.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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 484-85.
We have independently reviewed the record and conclude
that Gamboa has not made the requisite showing.

Accordingly, we

deny a certificate of appealability and dismiss the appeal.
dispense

with

oral

argument

because

2

the

facts

and

We

legal

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contentions

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are

adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3