US v. Hector McGurk, No. 12-7642 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7642 UNITED STATES OF AMERICA, Plaintiff Appellee, v. HECTOR RUBEN MCGURK, a/k/a Ruben, a/k/a El Mechanico, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:02-cr-00190-FDW-1; 3:09-cv-00312-FDW) Submitted: February 8, 2013 Decided: March 27, 2013 Before DUNCAN, AGEE, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Hector Ruben McGurk, Appellant Pro Se. Adam Christopher Morris, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina; Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hector Ruben McGurk seeks to appeal the district court s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2012) 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 must 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 McGurk 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 contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3