US v. Pena
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
December 20, 2007
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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
The orders are not appealable unless a circuit 28 U.S.C.
justice or judge issues a certificate of appealability.
§ 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent "a 28
substantial showing of the denial of a constitutional right." U.S.C. § 2253(c)(2) (2000). demonstrating that
A prisoner satisfies this standard by 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. F.3d 200, 208 (4th Cir. 2003). United States v. Winestock, 340
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 establish by by due diligence, and that would be sufficient that, but to for
constitutional error, no reasonable factfinder would have found the movant guilty of the offense. (2000). 28 U.S.C. §§ 2244(b)(2), 2255
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.
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