US v. Stanley Hoberek

Filing

UNPUBLISHED PER CURIAM OPINION filed.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]

US v. Stanley Hoberek

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Case: 10-6513 Document: 9

Date Filed: 10/04/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6513 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STANLEY HOBEREK, Defendant - Appellant.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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.

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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.

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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

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