US v. Rolando Reyes-Garcia

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999437986-2]; denying for certificate of appealability Originating case number: 5:11-cr-00182-F-1,5:12-cv-00432-F Copies to all parties and the district court/agency. [999499161]. Mailed to: R. Reyes-Garcia. [14-7206]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7206

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROLANDO REYES-GARCIA,
Salvador Jaramillo,

a/k/a

Francisco

Gomez,

a/k/a

Jose

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:11-cr-00182-F-1; 5:12-cv-00432-F)

Submitted:

December 18, 2014

Decided:

December 23, 2014

Before SHEDD, WYNN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Rolando Reyes-Garcia, Appellant Pro Se. Sebastian Kielmanovich,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Rolando

Reyes-Garcia

seeks

to

appeal

the

district

court’s order treating his “Motion to Re-open” as a successive
28 U.S.C. § 2255 (2012) motion, and dismissing it on that basis.
The order is not appealable unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(B) (2012).
issue

absent

“a

of

appealability.

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

28

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2012).

of

a

When the

district court denies relief on the merits, a prisoner satisfies
this

standard

by

demonstrating

that

reasonable

jurists

would

find that the district court’s assessment of the constitutional
claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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.

Slack,

529 U.S. at 484-85.
We have independently reviewed the record and conclude
that

Reyes-Garcia

has

not

made

the

requisite

showing.

Accordingly, we deny a certificate of appealability, deny leave
to proceed in forma pauperis, and dismiss the appeal.

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Additionally,

we

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construe

Reyes-Garcia’s

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.

§ 2255(h).

Reyes-Garcia’s

either of these criteria.

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
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

DISMISSED

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