US v. Luis Bonilla

Filing 920090126

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8385 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LUIS BONILLA, Defendant Appellant.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 SHEDD, Circuit Judges, and HAMILTON, Senior Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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