United States v. Lora , 112 F. App'x 291 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6899
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILFREDO GONZALEZ LORA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-98-358)
Submitted: October 18, 2004 Decided: November 4, 2004
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Wilfredo Gonzalez Lora, Appellant Pro Se. Thomas More Hollenhorst,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wilfredo Gonzalez Lora, a federal prisoner, seeks to
appeal the district court’s order denying relief on his motion to
amend his motion filed under 28 U.S.C. § 2255 (2000). The order is
not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); see
Reid v. Angelone, 369 F.3d 363, 368-69, 374 n.7 (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 Lora has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
Additionally, we construe Lora’s notice of appeal and
informal brief on appeal as an application to file a second or
successive § 2255 motion. See United States v. Winestock, 340 F.3d
200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496 (2003). In order
to obtain authorization to file a successive § 2255 motion, a
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prisoner must assert claims based on either: (1) a new rule of
constitutional law, previously unavailable, made retroactive by the
Supreme Court to cases on collateral review; or (2) newly
discovered evidence that would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2),
2255 (2000). Lora’s claim does not satisfy either of these
conditions. Therefore, we decline to authorize Lora to file a
successive § 2255 motion. 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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