US v. Marcos Galindo-Xochihua, No. 14-6960 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6960 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCOS GALINDO-XOCHIHUA, a/k/a Sld Dft 2:04m85-1, a/k/a Mickey Galindo, a/k/a Manuel, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Bryson City. Martin K. Reidinger, District Judge. (2:05-cr-00003-MR-DLH-1; 2:13-cv00051-MR) Submitted: November 20, 2014 Decided: November 25, 2014 Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Marcos Galindo-Xochihua, Appellant Pro Se. Thomas Richard Ascik, Donald David Gast, Assistant United States Attorneys, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marcos Galindo-Xochihua seeks to appeal the district court’s order dismissing as untimely his 28 U.S.C. § 2255 (2012) motion. judge The order is not appealable unless a circuit justice or issues a certificate § 2253(c)(1)(B) (2012). 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) (2012). 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. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Galindo-Xochihua 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