US v. Juan Alomia-Torre
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 3:97-cr-00040-FDW-2,3:13-cv-00422-FDW Copies to all parties and the district court/agency. [999303126]. Mailed to: Juan Alomia-Torres. [13-7485]
Appeal: 13-7485
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN BAUTISTA ALOMIA-TORRES, a/k/a Juan Baustista-Alomia,
a/k/a Luis Antonio Torres, a/k/a Edward Martinez, a/k/a Luis
Alfredo Martinez, a/k/a John the Jamaican, a/k/a John,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:97-cr-00040-FDW-2; 3:13-cv-00422-FDW)
Submitted:
February 20, 2014
Decided:
February 25, 2014
Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Juan Bautista Alomia-Torres, Appellant Pro se.
Michael E.
Savage, Jennifer A. Youngs, Assistant United States Attorneys,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Juan
Bautista
Alomia-Torres
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 (2012) motion, and dismissing
it on that basis.
motion
for
unless
a
He also seeks to appeal the order denying his
reconsideration.
circuit
appealability.
justice
The
or
orders
judge
are
issues
a
28 U.S.C. § 2253(c)(1)(B) (2012).
not
appealable
certificate
of
A certificate
of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2012).
28 U.S.C. § 2253(c)(2)
When the district court denies relief on the merits, a
prisoner
satisfies
this
jurists
would
reasonable
standard
find
by
that
demonstrating
the
district
that
court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003).
denies
relief
demonstrate
both
on
procedural
that
the
When the district court
grounds,
dispositive
the
prisoner
procedural
ruling
must
is
debatable, and that the motion states a debatable claim of the
denial of a constitutional right.
Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude
that
Alomia-Torres
has
not
made
the
requisite
showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
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Additionally,
we
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construe
Alomia-Torres’
notice
of
appeal and informal brief as an application to file a second or
successive § 2255 motion.
United States v. Winestock, 340 F.3d
200, 208 (4th Cir. 2003).
In order to obtain authorization to
file a successive § 2255 motion, a prisoner must assert claims
based on either:
(1) newly discovered evidence that . . . would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28
U.S.C.
satisfy
§ 2255(h)
either
of
(2012).
these
Alomia-Torres’
criteria.
claims
Therefore,
do
we
not
deny
authorization to file a successive § 2255 motion.
We dispense with oral argument because the facts and
legal
before
contentions
this
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
DISMISSED
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