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  • United States v. Fuentes-Gonzales, 4th Cir. (2010)

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    The United States Court of Appeals for the Fourth Circuit dismissed Jose Fuentes-Gonzales' appeal of the district court's order dismissing his 28 U.S.C.A. § 2255 motion as untimely. A certificate of appealability is required to appeal the dismissal of a § 2255 motion, which requires the appellant to demonstrate that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong. However, the appeals court independently reviewed the record and determined that Fuentes-Gonzales had failed to make the requisite showing. Therefore, the court denied the certificate of appealability and dismissed the appeal.

    Original Description:

    Filed: 2010-05-05 Precedential Status: Non-Precedential Docket: 09-7704

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    The United States Court of Appeals for the Fourth Circuit dismissed Jose Fuentes-Gonzales' appeal of the district court's order dismissing his 28 U.S.C.A. § 2255 motion as untimely. A certificate of appealability is required to appeal the dismissal of a § 2255 motion, which requires the appellant to demonstrate that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong. However, the appeals court independently reviewed the record and determined that Fuentes-Gonzales had failed to make the requisite showing. Therefore, the court denied the certificate of appealability and dismissed the appeal.

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    United States v. Fuentes-Gonzales, 4th Cir. (2010)

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    The United States Court of Appeals for the Fourth Circuit dismissed Jose Fuentes-Gonzales' appeal of the district court's order dismissing his 28 U.S.C.A. § 2255 motion as untimely. A certificate of appealability is required to appeal the dismissal of a § 2255 motion, which requires the appellant to demonstrate that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong. However, the appeals court independently reviewed the record and determined that Fuentes-Gonzales had failed to make the requisite showing. Therefore, the court denied the certificate of appealability and dismissed the appeal.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 09-7704

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    JOSE FUENTES-GONZALES, a/k/a Pepe,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of North Carolina, at Statesville.
    Graham C. Mullen,
    Senior District Judge. (5:02-cr-00007-GCM-1; 3:09-cv-00333-GCM;
    3:01-cr-00221-GCM-1)

    Submitted:

    April 20, 2010

    Before MOTZ and


    Circuit Judge.

    AGEE,

    Circuit

    Decided:

    Judges,

    and

    May 5, 2010

    HAMILTON,

    Senior

    Dismissed by unpublished per curiam opinion.

    Jose Fuentes-Gonzales, Appellant Pro Se.


    Michael E. Savage,
    Assistant United States Attorney, Charlotte, North Carolina, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Jose
    courts

    order

    Fuentes-Gonzales
    dismissing

    as

    (West Supp. 2009) motion.

    seeks

    to

    untimely

    his

    appeal
    28

    the

    district

    U.S.C.A.

    2255

    The order is not appealable unless a

    circuit justice or judge issues a certificate of appealability.


    28 U.S.C. 2253(c)(1) (2006).

    A certificate of appealability

    will not issue absent a substantial showing of the denial of a


    constitutional
    prisoner
    reasonable

    right.

    satisfies
    jurists

    constitutional

    28

    U.S.C.

    this

    standard

    would

    claims

    by

    2253(c)(2)

    find
    the

    that

    district

    by

    (2006).

    demonstrating

    any

    assessment

    court

    is

    that

    of

    the

    debatable

    or

    wrong and that any dispositive procedural ruling by the district


    court is likewise debatable.

    Miller-El v. Cockrell, 537 U.S.

    322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
    Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

    We have

    independently

    Fuentes-

    reviewed

    the

    record

    and

    conclude

    Gonzales has not made the requisite showing.

    that

    Accordingly, we

    deny a certificate of appealability and dismiss the appeal.


    dispense

    with

    oral

    argument

    because

    the

    facts

    and

    We

    legal

    contentions are adequately presented in the materials before the


    court and argument would not aid the decisional process.

    DISMISSED

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