United States of America v. Michael M. Kostenko

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6312
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
MICHAEL M. KOSTENKO,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Beckley. Irene C. Berger, District Judge. (5:16-cr-00221-1; 5:19-cv-00574)
Submitted: April 27, 2023 Decided: June 1, 2023
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael M. Kostenko, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael M. Kostenko seeks to appeal the district court’s order denying relief on his
28 U.S.C. § 2255 motion. The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. See 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). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that reasonable jurists could find the
district court’s assessment of the constitutional claims debatable or wrong. See Buck v.
Davis, 580 U.S. 100, 115-17 (2017). 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.
Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473,
484 (2000)).
We have independently reviewed the record and conclude that Kostenko 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

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