United States of America v. Jose Hernandez-Carbajal

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-7534
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE HERNANDEZ-CARBAJAL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:00-cr-00297-TDS-1; 1:17-
cv-01057-TDS-LPA)
Submitted: April 25, 2019 Decided: April 30, 2019
Before FLOYD and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Jose Hernandez-Carbajal, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 2 --

2
PER CURIAM:
Jose Hernandez-Carbajal seeks to appeal the district court’s order adopting the
recommendation of the magistrate judge and dismissing as untimely Hernandez-
Carbajal’s 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 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 Hernandez-
Carbajal 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 of 2 --