US v. Mario Benitez-Pineda, No. 18-6509 (4th Cir. 2018)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6509 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIO BENITEZ-PINEDA, a/k/a Cuzuco, a/k/a Chaparro, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:12-cr-00273-LO-1; 1:16-cv-00565-LO) Submitted: October 9, 2018 Decided: November 26, 2018 Before NIEMEYER and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Mario Benitez-Pineda, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Mario Benitez-Pineda seeks to appeal the district court’s order denying as untimely his 28 U.S.C. § 2255 (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) (2012). 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). 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 (2000); see also 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 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 Benitez-Pineda 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 before this court and argument would not aid the decisional process. DISMISSED 2