United States v. Lora

Full title: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILFREDO GONZALEZ LORA…

Court: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Date published: Dec 19, 2014

588 F. App'x 240 (4th Cir. 2014)

Opinion

No. 14-7410

12-19-2014

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

Wilfredo Gonzalez Lora, Appellant Pro Se. Andrew Lamont Creighton, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

PER CURIAM

UNPUBLISHED Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.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; 1:09-cv-01008-LMB) Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Wilfredo Gonzalez Lora, Appellant Pro Se. Andrew Lamont Creighton, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Wilfredo Lora seeks to appeal the district court's order dismissing his Fed. R. Civ. P. 60(b) motion as an unauthorized, successive 28 U.S.C. § 2255 (2012) motion, or in the alternative, denying Rule 60(b) relief, and its order denying Lora's motion to alter or amend that decision, pursuant to Fed. R. Civ. P. 59(e). These orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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 assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 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 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 Lora has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We also deny Lora's motion to place his case in abeyance.

Additionally, we construe Lora's notice of appeal and informal brief as an application to file a second or successive § 2255 motion. United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). 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) (2012). Lora's claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

DISMISSED