United States of America v. United States, 1 F.3d 246, 250 4th Cir. 1993 stating that issues raised for first time

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6443
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN HERNANDEZ, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:04-cr-00134-SGW; 7:06-cv-00594-SGW)
Submitted: May 10, 2007 Decided: May 15, 2007
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Juan Hernandez, Jr., Appellant Pro Se. Ronald Andrew Bassford,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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*We decline to consider Hernandez’s claim of ineffective
assistance of counsel, asserted for the first time on appeal. See
Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (stating
that issues raised for first time on appeal will not be considered
absent a showing of plain error or a fundamental miscarriage of
justice).
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PER CURIAM:
Juan Hernandez, Jr., seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 (2000) motion. The
order is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
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 reviewed the record and conclude that Hernandez has
not made the requisite showing. Accordingly, we deny a certificate
of appealability, deny Hernandez’s motion for leave to proceed in
forma pauperis, and dismiss the appeal. * We dispense with oral
argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED

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