US v. Antonio Moscol, No. 10-7742 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7742 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO MOSCOL, a/k/a Screw, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:07-cr-00003-F-1; 5:10-cv-00093-F) Submitted: May 31, 2011 Decided: June 3, 2011 Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Antonio Moscol, Appellant Pro Se. Jennifer P. May-Parker, Assistant United States Attorney, Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antonio Moscol seeks to appeal the district court s order dismissing without prejudice his 28 U.S.C.A. § 2255 (West Supp. 2010) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2006). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district that court s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief demonstrate on both procedural that the When the district court grounds, dispositive the prisoner procedural ruling must is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Because district he failed court s to challenge rejection of on his Slack, 529 U.S. at 484-85. appeal claims, Moscol has not made the requisite showing. 2 the we bases for conclude the that Accordingly, we deny a certificate dispense with of appealability oral argument and dismiss because the the appeal. * facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED * In the interests of justice, we have construed Moscol s informal brief as a motion to recall the mandate in his direct appeal, No. 07-5131, and will conduct further proceedings related to the motion. 3
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