United States v. Joseph DiBruno, Jr. , 678 F. App'x 113 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7305
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH DIBRUNO, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:06-cr-00430-FDW-1; 3:11-cv-00297-FDW)
Submitted: February 23, 2017 Decided: February 27, 2017
Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Joseph DiBruno, Jr., Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph DiBruno, Jr., seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motion for
reconsideration of the district court’s order denying relief on
his 28 U.S.C. § 2255 (2012) motion. DiBruno contends that his
motion was not intended as a successive § 2255 motion and we
agree. We therefore construe it as a true Rule 60(b) motion.
The order 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.
We have independently reviewed the record and conclude that
DiBruno has not made the requisite showing. Although the
2
district court’s procedural ruling may be debatable, DiBruno’s
motion did not state a debatable claim of a constitutional
right. Accordingly, we deny a certificate of appealability and
dismiss the appeal. We 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
3