US v. Garcia, No. 05-7093 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7093 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus VENTURA GARCIA, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (CR-01-52; CA-05-209) Submitted: February 28, 2006 Decided: May 15, 2006 Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges. Dismissed by unpublished per curiam opinion. Ventura Garcia, Appellant Pro Se. Jill Westmoreland Rose, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Ventura Garcia seeks to appeal from the district court s order denying relief on his 28 U.S.C. § 2255 (2000) motion, which the district court properly construed as a second or successive § 2255 motion for which authorization from this court had not been granted. judge The order is not appealable unless a circuit justice or issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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 find that the district court s assessment of his constitutional claims is debatable or wrong and that any dispositive procedural rulings by the district court are also debatable or wrong. 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 Garcia has not made the requisite 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 before the court and argument would not aid the decisional process. DISMISSED - 2 -

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