US v. Franciszek Cetera, No. 11-6992 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6992 UNITED STATES OF AMERICA, Plaintiff Appellee, v. FRANCISZEK PIOTR CETERA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:02-cr-00002-BO-1; 7:11-cv-00108-BO) Submitted: November 15, 2011 Decided: November 18, 2011 Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Franciszek Piotr Cetera, Appellant Pro Se. Ethan A. Ontjes, Assistant United States Attorney, Michael Gordon James, Tobin Webb Lathan, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Franciszek Piotr Cetera seeks to appeal the district court s order dismissing his 2011) motion as successive. a circuit justice appealability. 28 U.S.C.A. § 2255 (West Supp. The order is not appealable unless or judge issues a certificate 28 U.S.C. § 2253(c)(1)(B) (2006). of 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 on both procedural that the When the district court grounds, the dispositive prisoner procedural must ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. We have independently reviewed the Slack, 529 U.S. at 484-85. record Cetera has not made the requisite showing. and conclude that Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, and informal brief we as successive § 2255 motion. an construe Cetera s application to notice file a of appeal second or United States v. Winestock, 340 F.3d 2 200, 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, previously unavailable, made retroactive by the Supreme Court to cases on collateral 2011). review. 28 U.S.C.A. § 2255(h)(1)-(2) (West Supp. Cetera 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 before contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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