US v. Hernandez, No. 05-7544 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7544 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus XIOMARO E. HERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis III, District Judge. (CR-90-348-A; CA-05-191) Submitted: February 23, 2006 Decided: March 3, 2006 Before WIDENER, NIEMEYER, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Frank Willard Dunham, Jr., Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Mark Clayton Grundvig, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Xiomaro E. Hernandez, a federal prisoner, seeks to appeal the district court s order and order on reconsideration denying her 28 U.S.C. § 2255 (2000) motion as well as the court s order denying a certificate of appealability. unless a circuit appealability. justice or The orders are not appealable judge issues a 28 U.S.C. § 2253(c)(1) (2000). certificate of 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would constitutional find the claims is district court s debatable or assessment wrong and of her that any dispositive procedural rulings by the district court are likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Hernandez has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. DISMISSED - 2 -

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