UNITED STATES v. NOGALES (2019)

Carlos German Lema Nogales seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2255 (2012) motion and denying his motion to reconsider the court's denial of his motion for discovery and expansion of the record. 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595.

We have independently reviewed the record and conclude that Nogales has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny leave to proceed in forma pauperis and deny as moot Nogales’ motion for transcripts at the Government's expense. 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

FOOTNOTES

FOOTNOTE.   Because it was filed more than 28 days after the entry of the district court's order, we construe Nogales’ motion to reconsider as filed pursuant to Fed. R. Civ. P. 60(b). A certificate of appealability is required for the order to be appealable. See Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004), abrogated in part by United States v. McRae, 793 F.3d 392, 400 & n.7 (4th Cir. 2015).

PER CURIAM:

Dismissed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.