Opinion
No. 09-8115.
Submitted: June 17, 2010.
Decided: June 24, 2010.
Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Samuel G. Wilson, District Judge. (5:02-cr-30020-sgw-mfu-4; 5:09-cv-30124-sgw-mfu).
Howard J. Beard, Appellant Pro Se. Jean Barrett Hudson, Assistant United States Attorney, Charlottesville, Virginia; Ryan Lee Souders, Jeb Thomas Terrien, Assistant United States Attorneys, Harrisonburg, Virginia, for Appellee.
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Howard J. Beard seeks to appeal the district court's order denying relief on 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) (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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-58, 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 Beard has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Beard's motion to appoint counsel. 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.