United States v. Moscol , 434 F. App'x 185 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7742
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO MOSCOL, a/k/a Screw,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:07-cr-00003-F-1; 5:10-cv-00093-F)
Submitted: May 31, 2011 Decided: June 3, 2011
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Antonio Moscol, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Seth Morgan Wood, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Moscol seeks to appeal the district court’s
order dismissing without prejudice his 28 U.S.C.A. § 2255 (West
Supp. 2010) 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) (2006). 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)
(2006). 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.
Because he failed to challenge on appeal the bases for the
district court’s rejection of his claims, we conclude that
Moscol has not made the requisite showing. Accordingly, we deny
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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 the
court and argument would not aid the decisional process.
DISMISSED
*
In the interests of justice, we have construed Moscol’s
informal brief as a motion to recall the mandate in his direct
appeal, No. 07-5131, and will conduct further proceedings
related to the motion.
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