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UNPUBLISHED PER CURIAM OPINION filed.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. . Mailed to: Appellant. [16-7305]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
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)
February 23, 2017
February 27, 2017
Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Dismissed by unpublished per curiam opinion.
Joseph DiBruno, Jr., Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Unpublished opinions are not binding precedent in this circuit.
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Joseph DiBruno, Jr., seeks to appeal the district court’s
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
We therefore construe it as a true Rule 60(b) motion.
The order is not appealable unless a circuit justice or judge
§ 2253(c)(1)(B) (2012).
A certificate of appealability will not
28 U.S.C. § 2253(c)(2) (2012).
district court denies relief on the merits, a prisoner satisfies
find that the district court’s assessment of the constitutional
claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473,
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.
529 U.S. at 484-85.
We have independently reviewed the record and conclude that
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district court’s procedural ruling may be debatable, DiBruno’s
Accordingly, we deny a certificate of appealability and
dismiss the appeal.
We dispense with oral argument because the
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