US v. Joseph DiBruno, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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