United States v. Cazaco ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6311
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEONEL ROMEO CAZACO, a/k/a Jimmy Fingers,
a/k/a Frank Nisbett, a/k/a James Romeo Nelson,
a/k/a Phil, a/k/a Scott,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-96-66)
Submitted: July 20, 2005 Decided: August 4, 2005
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Leonel Romeo Cazaco, Appellant Pro Se. Stephen Wiley Miller, David
John Novak, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Leonel Romeo Cazaco seeks to appeal the district court’s
order denying relief on his motion filed pursuant to Fed. R. Civ.
P. 60(b), seeking reconsideration of the denial of his 28 U.S.C.
§ 2255 (2000) motion. Because Cazaco’s motion did not assert a
defect in the collateral review process itself, but rather reargued
the merits of his § 2255 motion based on new case law, the district
court concluded that it did not constitute a true Rule 60(b) motion
under our decision in United States v. Winestock, 340 F.3d 200, 207
(4th Cir.), cert. denied, 540 U.S. 995 (2003). To appeal an order
denying a Rule 60(b) motion in a habeas action, Cazaco must
establish entitlement to a certificate of appealability. See
Reid v. Angelone, 369 F.3d 363, 368 (4th Cir. 2004).
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 his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See 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 (4th Cir. 2001). We have independently reviewed the
record and conclude that Cazaco has not made the requisite showing.
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Accordingly, we deny a certificate of appealability and dismiss the
appeal.
To the extent that Cazaco’s notice of appeal and informal
brief could be construed as a motion for authorization to file a
successive § 2255 motion, we deny such authorization. See
Winestock, 340 F.3d at 208. 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
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