US v. Oscar Hernandez, No. 14-7027 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7027 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OSCAR HERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:08-cr-00027-RLV-DCK-4; 5:12-cv00194-RLV) Submitted: November 21, 2014 Before KING and Circuit Judge. KEENAN, Circuit Decided: Judges, December 22, 2014 and DAVIS, Senior Dismissed by unpublished per curiam opinion. Oscar Hernandez, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Oscar Hernandez seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate (2012). of appealability. 28 U.S.C. § 2253(c)(1)(B) A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district merits, that court’s debatable or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find U.S. that the claims constitutional 529 by is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). 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 claim of the denial of a constitutional right. a debatable Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Hernandez has not made the requisite showing. ∗ ∗ Accordingly, Although the district court failed to give Hernandez notice under Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), our certificate of appealability assessment convinces us that this omission was harmless. 2 we deny the motion dismiss the appeal. facts and materials legal before for a certificate of appealability and We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. DISMISSED 3