US v. Stanley Hoberek


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:99-cr-00013-FPS-JES-1 Copies to all parties and the district court/agency. [998437886] [10-6513]

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US v. Stanley Hoberek Doc. 0 Case: 10-6513 Document: 9 Date Filed: 10/04/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6513 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STANLEY HOBEREK, Defendant - Appellant.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) Submitted: September 28, 2010 Decided: October 4, 2010 Before WILKINSON, SHEDD, and DAVIS, 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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Case: 10-6513 Document: 9 Date Filed: 10/04/2010 Page: 2 PER CURIAM: Stanley Hoberek seeks to appeal the district court's order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.A. 2255 (West Supp. 2010) motion, and dismissing it 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." 28 U.S.C. 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district debatable court's or assessment Slack of v. the constitutional 529 U.S. claims 473, is 484 wrong. McDaniel, (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. at 484-85. that We have independently has not made reviewed the Slack, 529 U.S. the record and conclude Hoberek requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 2 Case: 10-6513 Document: 9 Date Filed: 10/04/2010 Page: 3 Additionally, we construe Hoberek's notice of appeal and informal brief as an application to file a second or successive 2255 motion. 200, 208 (4th Cir. 2003). United States v. Winestock, 340 F.3d In order to obtain authorization to file a successive 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable establish by by due diligence, and that would be sufficient that, but to for clear convincing evidence 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. 2255(h) (West Supp. 2010). either of these criteria. 28 U.S.C.A. Hoberek's claims do not satisfy 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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