US v. Domingo Pena, No. 10-7388 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7388 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DOMINGO NOLBERTO PENA, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:98-cr-00132-JCC-11; 1:00-cv-01693). Submitted: January 18, 2011 Decided: January 27, 2011 Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. Domingo Nolberto Pena, Appellant Pro Se. Morris Rudolph Parker, Jr., James L. Trump, Assistant United States Attorneys, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Domingo Nolberto Pena seeks to appeal the district court s order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.A. § 2255 dismissing it on that basis. a circuit justice appealability. 369 F.3d or (West Supp. 2010) motion, and The order is not appealable unless judge issues a certificate of 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district that 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). denies relief demonstrate both on procedural that the When the district court grounds, dispositive the prisoner procedural ruling must 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 Pena has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 2 Additionally, we construe Pena 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 discoverable establish by by discovered due diligence, clear and evidence, that convincing not would be evidence previously sufficient that, but to for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) not (West Supp. 2010). either of these criteria. Pena s claims do satisfy Therefore, we deny authorization to file a successive § 2255 motion. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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