US v. Stanley Hoberek

Filing 920091006

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6466

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STANLEY HOBEREK, Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:99-cr-00013-FPS-JES-1; 5:00-cv-00184-FPS-JES)

Submitted:

September 29, 2009

Decided:

October 6, 2009

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Stanley Hoberek, Appellant Pro Se. Robert Hugh McWilliams, Jr., Assistant United States Attorney, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Stanley Hoberek seeks to appeal the district court's order accepting the recommendation of the magistrate judge,

treating his Fed. R. Civ. P. 60(b) motions as successive 28 U.S.C.A. § 2255 (West Supp. 2009) motions, and dismissing them on that basis. justice or judge The order is not appealable unless a circuit issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2006); 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." this 28 U.S.C. § 2253(c)(2) (2006). by demonstrating that A prisoner satisfies jurists would

standard

reasonable

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 record (4th and Cir. 2001). that We have independently has not made reviewed the motion the

conclude

Hoberek we deny

requisite for a

showing.

Accordingly,

Hoberek's

certificate of appealability and dismiss the appeal. Additionally, we construe Hoberek's notice of appeal and informal brief as an application to file a second or

successive motion under 28 U.S.C.A. § 2255. 2

United States v.

Winestock, 340 F.3d 200, 208 (4th Cir. 2003). obtain authorization must to file claims not a successive based on

In order to motion, a

§ 2255 either:

prisoner discovered

assert

(1) newly by due

evidence,

previously

discoverable

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; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. Hoberek's claims do 28 U.S.C.A. § 2255(h) (West Supp. 2009). 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