US v. Ricardo Arce, No. 11-6845 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6845 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RICARDO ARCE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:08-cr-00111-BO-1; 5:10-cv-00078-BO) Submitted: November 15, 2011 Decided: November 17, 2011 Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Ricardo Arce, Appellant Pro Se. Jennifer P. May-Parker, Assistant United States Attorney, Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ricardo Arce seeks to appeal the district order denying his Fed. R. Civ. P. 60(b) motion. * not appealable unless a circuit certificate of appealability. A certificate of justice or court s The order is judge issues a 28 U.S.C. § 2253(c)(1)(B) (2006). appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). relief on the demonstrating district debatable merits, that court s or a prisoner reasonable assessment wrong. When the district court denies Slack satisfies jurists this would of the v. McDaniel, standard find that U.S. the claims constitutional 529 by is 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 the 484-85. conclude that We have Arce independently has not made reviewed the record requisite and showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. * Because the Rule 60(b) motion directly attacked Arce s sentence, it was, in essence, an unauthorized and successive 28 U.S.C.A. § 2255 (West Supp. 2011) motion over which the district court lacked jurisdiction. See United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003). Additionally, we construe Arce s notice of appeal and informal brief as an application to file a second or successive § 2255 motion. Winestock, 340 F.3d at 208. In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims evidence, not would based sufficient be evidence that, previously but to for on either: discoverable establish (1) newly by by due diligence, clear constitutional discovered error, that and convincing 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) (West Supp. 2011). do not satisfy either of these criteria. Arce s claims 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
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