US v. Luis Bonilla

Filing 920090126

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8385

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. LUIS BONILLA, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:95-cr-00522-LMB-2; 1:08-cv-01039-LMB)

Submitted:

January 15, 2009

Decided:

January 26, 2009

Before MOTZ and Circuit Judge.

SHEDD,

Circuit

Judges,

and

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Luis Bonilla, Appellant Pro Se. Bernard James Apperson, III, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Luis Bonilla seeks to appeal the district court's

order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) A "a

(2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). certificate of appealability will not issue absent

substantial showing of the denial of a constitutional right." 28 U.S.C. by § 2253(c)(2) (2000). that A prisoner satisfies would this find

standard

demonstrating

reasonable

jurists

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). that We have independently has not made reviewed the the record and

conclude

Bonilla

requisite

showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Bonilla'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. In order to

Winestock, 340 F.3d 200, 208 (4th Cir. 2003). 2

obtain

authorization

to

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). Bonilla'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 before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. DISMISSED

3