US v. Wilfredo Lora, No. 14-7410 (4th Cir. 2014)

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The court issued a subsequent related opinion or order on November 4, 2015.
The court issued a subsequent related opinion or order on December 9, 2015.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7410 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. WILFREDO GONZALEZ LORA, Defendant - Appellant. 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) Submitted: December 16, 2014 Before DUNCAN Circuit Judge. and DIAZ, Circuit Decided: Judges, December 19, 2014 and DAVIS, Senior Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 order dismissing Lora his seeks Fed. to R. appeal Civ. the P. district 60(b) court’s 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). unless a circuit appealability. justice These orders are not appealable or judge issues a 28 U.S.C. § 2253(c)(1)(B) (2012). certificate of A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” (2012). 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 Lora has not made the requisite showing. 2 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). of these criteria. Lora’s claims do not satisfy either Therefore, we deny authorization to file a successive § 2255 motion. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3