                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-7316


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FERNANDO REYNOSO AVALOS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.        Anthony J. Trenga,
District Judge. (1:10-cr-00134-AJT-1; 1:13-cv-00846-AJT)


Submitted:   February 18, 2015            Decided:   February 25, 2015


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Alan Hideto Yamamoto, for Appellant. Cindy Chang, Scott Butler
Nussbum, Jeffrey Michael Tharp, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Fernando     Reynoso     Avalos     seeks      to    appeal       the    district

court’s order construing his 28 U.S.C. § 2255 (2012) motion as a

motion for relief under § 2255 or, in the alternative, as a

motion under Fed. R. Crim. P. 33 for a new trial and denying the

motion.

       The portion of the district court’s order denying § 2255

relief to Avalos 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    (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.




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     We have independently reviewed the record and conclude that

Avalos has not made the requisite showing.             Accordingly, we deny

a certificate of appealability and dismiss the appeal, in part.

     With respect to the portion of the district court’s order

denying relief under Rule 33, we have reviewed the record and

find no reversible error.            Accordingly, we affirm the district

court’s order, in part, for the reasons stated by the district

court.        United   States   v.    Avalos,   Nos.   1:10-cr-00134-AJT-1;

1:13-cv-00846-AJT (E.D. Va. Aug. 19, 2014).               We deny Avalos’

motion   to     appoint   counsel     and   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 IN PART;
                                                           AFFIRMED IN PART




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