Joseph Nobrega v. George Hinkle

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cv-00381-LO-JFA. Copies to all parties and the district court/agency. [999514075]. Mailed to: Joseph Nobrega. [14-7561]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7561

JOSEPH NOBREGA,
Petitioner - Appellant,
v.
GEORGE M. HINKLE, Warden,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam O’Grady, District
Judge. (1:08-cv-00381-LO-JFA)

Submitted:

January 15, 2015

Decided:

January 21, 2015

Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Joseph Nobrega, Appellant Pro Se. Eugene Paul Murphy, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joseph Nobrega seeks to appeal the district court’s
order treating his Fed. R. Civ. P. 60(b) motion as a successive
28

U.S.C.

basis.
judge

§ 2254

(2012)

petition,

and

dismissing

it

on

that

The order is not appealable unless a circuit justice or
issues

a

certificate

of

appealability.

28

U.S.C.

§ 2253(c)(1)(A) (2012); 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) (2012).

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

debatable

or

assessment

wrong.

Slack

of

the

constitutional

v.

McDaniel,

529

U.S.

claims
473,

is
484

(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 petition 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 Nobrega has not made the requisite showing.

Accordingly,

we deny a certificate of appealability and dismiss the appeal.

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Additionally, we construe Nobrega’s notice of appeal
and

informal

brief

as

an

application

successive § 2254 petition.

to

file

a

second

or

United States v. Winestock, 340

F.3d 200, 208 (4th Cir. 2003).

In order to obtain authorization

to file a successive § 2254 petition, a prisoner must assert
claims based on either: (1) a new rule of constitutional law,
previously unavailable, made retroactive by the Supreme Court to
cases on collateral review; or (2) newly discovered evidence,
not

previously

discoverable

by

due

diligence,

that

would

be

sufficient to establish by clear and convincing evidence that,
but

for

constitutional

error,

no

reasonable

factfinder

have found the petitioner guilty of the offense.
§ 2244(b)(2) (2012).
these

criteria.

would

28 U.S.C.

Nobrega’s claims do not satisfy either of

Therefore,

we

deny

authorization

to

file

a

successive § 2254 petition.
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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