US v. Ward Mohler, No. 12-7113 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7113 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WARD EVERETTE MOHLER, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Glen E. Conrad, Chief District Judge. (5:12-cv-80449-GEC-RSB; 5:91-cr-00131-GEC-2) Submitted: November 13, 2012 Decided: November 15, 2012 Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Ward Everette Mohler, Appellant Pro Se. Jean Barrett Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ward Everette Mohler 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. or (West Supp. 2012) motion, and The order is not appealable unless 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). When the district court denies relief on the merits, a prisoner satisfies this reasonable jurists would assessment of constitutional wrong. 28 U.S.C. § 2253(c)(2) the standard find by that demonstrating the claims district is that court s debatable or 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 Mohler has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, and informal brief as we an construe Mohler s application 2 to notice file a of appeal 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: discoverable establish by by (1) newly discovered evidence, not previously due diligence, clear and that convincing would be evidence 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. § 2255(h) (West Supp. 2012). either of these criteria. 28 U.S.C.A. Mohler s claims do not 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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