US v. Wilfredo Lora

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:98-cr-00358-LMB-4,1:11-cv-01413-LMB,1:09-cv-01008-LMB Copies to all parties and the district court/agency. [999715114]. Mailed to: Wilfredo Gonzalez Lora. [14-7410, 15-6137]

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ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7410

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILFREDO GONZALEZ LORA,
Defendant - Appellant.

No. 15-6137

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILFREDO GONZALEZ LORA,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge.
(1:98-cr-00358-LMB-4; 1:11-cv-01413-LMB; 1:09cv-01008-LMB; 1:14-cv-00873-LMB; 1:03-cv-00670-LMB)

Submitted:

November 25, 2015

Decided:

December 9, 2015

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Before DUNCAN
Circuit Judge.

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and

DIAZ,

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Circuit

Judges,

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Wilfredo Gonzalez Lora, Appellant Pro Se.
Richard D. Cooke,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In

these

consolidated

appeals,

Wilfredo

Gonzalez

Lora

appeals the district court’s orders denying his Fed. R. Civ. P.
60(b) motion seeking relief from its judgment denying 28 U.S.C.
§ 2255 (2012) relief, denying his Fed. R. Civ. P. 59(e) motion
seeking to alter or amend the order denying Rule 60(b) relief,
denying his motion to amend his Rule 60(b) motion, and denying
his Rule 59(e) motion seeking relief from the order denying his
motion to amend.
A

prisoner

proceeding

For the reasons that follow, we affirm.
cannot

unless

a

appeal
circuit

a

justice

certificate of appealability (COA).
(2012).

final

order
or

judge

F.3d

a

§ 2255

issues

a

28 U.S.C. § 2253(c)(1)(B)

Generally, a COA is required to appeal an order denying

a Rule 60(b) motion in a § 2255 proceeding.
369

in

363,

369

(4th

Cir.

2004).

Reid v. Angelone,

This

court

recently

clarified, however, that a COA is not required in the limited
circumstance in which the district court dismisses a Rule 60(b)
motion as an unauthorized, successive habeas petition.

United

States v. McRae, 793 F.3d 392, 399-400 (4th Cir. 2015).
To file a successive § 2255 motion in the district court, a
prisoner

must

first

obtain

preauthorization

28 U.S.C. §§ 2244(b)(3)(A), 2255(h) (2012).

from

this

court.

Although a prisoner

is permitted to seek Rule 60(b) relief from a district court’s
judgment

in

a

§ 2255

proceeding,
3

“a

district

court

has

no

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discretion to rule on a Rule 60(b) motion that is functionally
equivalent

to

a

successive

[§ 2255]

application.”

United

States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003).

Where a

Rule 60(b) motion “challenges some defect in the integrity of
the federal habeas proceedings,” it is a true Rule 60(b) motion
and may be reviewed without preauthorization.
at

397

(internal

quotation

marks

McRae, 793 F.3d

omitted).

Applying

these

principles, we conclude the COA requirement does not apply to
Lora’s appeal of the orders dismissing his Rule 60(b) motion and
denying his subsidiary postjudgment motions.
We

review

for

abuse

of

discretion

the

denial of a Rule 59(e) or Rule 60(b) motion.

district

court’s

Mayfield v. Nat’l

Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th
Cir. 2012) (Rule 59(e)); MLC Auto., LLC v. Town of S. Pines, 532
F.3d 269, 277 (4th Cir. 2008) (Rule 60(b)).

We discern no abuse

of discretion in the court’s rejection of Lora’s motions.
As

the

district

court

correctly

determined,

Lora’s

Rule

60(b) motion seeking relief from the district court’s § 2255
judgment is the functional equivalent of a successive § 2255
motion.

See

Gonzalez

v.

Crosby,

Winestock, 340 F.3d at 207.

545

U.S.

524,

532

(2005);

While Lora argues that his Rule

60(b) motion addressed only a procedural defect in the § 2255
proceedings,

the

characterization

as

substance
a

“true”

of
Rule
4

his
60(b)

motion
motion.

belies

its

Similarly,

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Lora’s Rule 59(e) motion to alter or amend the order dismissing
his Rule 60(b) motion raised arguments seeking to undermine the
district court’s disposition of his substantive claims in his
§ 2255

motion

conviction.

and,

effectively,

his

underlying

criminal

The district court therefore lacked jurisdiction to

adjudicate

these

motions,

and

they

were

properly

subject

to

dismissal.
With regard to his motion to amend his Rule 60(b) motion
and

subsequent

Rule

59(e)

motion,

Lora

relies

on

Fobian

v.

Storage Tech. Corp., 164 F.3d 887 (4th Cir. 1999), to argue that
the district court improperly declined to exercise jurisdiction
over

the

motion

to

amend.

However,

Fobian’s

holding

is

inapposite here, as Lora’s motion to amend was not a Rule 60(b)
motion and was not in aid of the pending appeal.

See Doe v.

Public Citizen, 749 F.3d 246, 258 (4th Cir. 2014); Fobian, 164
F.3d at 890-91.

In any event, even if the pending appeal did

not deprive the district court of jurisdiction over the motion,
the court would have lacked jurisdiction to consider it, as it
was

itself

successive

the
§ 2255

functional
motion.

Winestock, 340 F.3d at 207.

equivalent
See

of

Gonzalez,

an
545

unauthorized,
U.S.

at

532;

Thus, the district court properly

denied Lora’s motion to amend and his Rule 59(e) motion seeking
relief from the order denying that motion.

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Finally, we construe Lora’s notices of appeal and appellate
pleadings

as

an

§ 2255 motion.

application

to

file

a

second

Winestock, 340 F.3d at 208.

or

successive

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).
these

criteria.

Lora’s claims do not satisfy either of

Therefore,

we

deny

authorization

to

file

a

successive § 2255 motion.
Accordingly, we affirm the district court’s orders.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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