United States v. Pena , 260 F. App'x 567 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7411
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOMINGO NOLBERTO PENA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:98-cr-00132-JCC; 1:00-cv-01693)
Submitted: December 20, 2007 Decided: December 28, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Domingo Nolberto Pena, Appellant Pro Se. James L. Trump, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Domingo Nolberto Pena seeks to appeal the district
court’s order treating his Fed. R. Civ. P. 60(b)(4) motion as a
successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on
that basis, and a subsequent order denying his motion for
reconsideration. The orders are not appealable unless a circuit
justice or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (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 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 Pena has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Pena’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. United States v. Winestock, 340
F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to
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file a successive § 2255 motion, a 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, not previously
discoverable by due diligence, that would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the
movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Pena’s claims do not satisfy either of these criteria.
Therefore, we deny authorization 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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