US v. Herculano Albarran-Martinez, No. 13-7167 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7167 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HERCULANO ALBARRAN-MARTINEZ, Hernandez, a/k/a El Nene, a/k/a Oscar Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:10-cr-00005-RLV-DCK-1; 5:13-cv00052-RLV) Submitted: December 17, 2013 Decided: December 19, 2013 Before KING, GREGORY, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Herculano Albarran-Martinez, Appellant Pro Se. Thomas Richard Ascik, Assistant United States Attorney, Asheville, North Carolina; Steven R. Kaufman, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Herculano Albarran-Martinez seeks to appeal the district court s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2013) 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 both on 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. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Albarran-Martinez 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 this court and argument would not aid the decisional process. DISMISSED 3