US v. Joseph DiBruno, Jr.


UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 3:06-cr-00430-FDW-1, 3:11-cv-00297-FDW. Copies to all parties and the district court. [1000031003]. Mailed to: Appellant. [16-7305]

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Appeal: 16-7305 Doc: 6 Filed: 02/27/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7305 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSEPH DIBRUNO, JR., Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:06-cr-00430-FDW-1; 3:11-cv-00297-FDW) Submitted: February 23, 2017 Decided: February 27, 2017 Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Joseph DiBruno, Jr., Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7305 Doc: 6 Filed: 02/27/2017 Pg: 2 of 3 PER CURIAM: Joseph DiBruno, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(b) motion for reconsideration of the district court’s order denying relief on his 28 U.S.C. § 2255 (2012) motion. DiBruno contends that his motion was not intended as a successive § 2255 motion and we agree. We therefore construe it as a true Rule 60(b) motion. 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 DiBruno has not made the requisite 2 showing. Although the Appeal: 16-7305 Doc: 6 Filed: 02/27/2017 Pg: 3 of 3 district court’s procedural ruling may be debatable, DiBruno’s motion right. did not state debatable claim of a constitutional Accordingly, we deny a certificate of appealability and dismiss the appeal. facts a and materials legal before We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. DISMISSED 3

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