US v. Frank Esquivel, No. 09-7684 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7684 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANK ESQUIVEL, Defendant - Appellant.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: June 17, 2010 Before MOTZ and Circuit Judge. KING, Decided: Circuit Judges, and June 23, 2010 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Frank Esquivel, Appellant Pro Se. Rudolf A. Renfer, Jr., Assistant United States Attorney, Kimberly Ann Moore, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Frank Esquivel seeks to appeal the district court s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2010) motion. judge The order is not appealable unless a circuit justice or issues a certificate § 2253(c)(1) (2006). issue absent a of 28 U.S.C. A certificate of appealability will not substantial constitutional right. appealability. showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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. 529 U.S. at 484-85. Slack, We have independently reviewed the record and conclude that Esquivel 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 2 before the court and argument would not aid the decisional process. DISMISSED 3
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