United States v. Montoya

144 F. App'x 336

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-6534

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DANILO MONTOYA,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Margaret B. Seymour, District Judge. (CR-99-98; CA-05-759)

Submitted: September 27, 2005 Decided: September 30, 2005

Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Danilo Montoya, Appellant Pro Se. Arthur Bradley Parham, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Danilo Montoya seeks to appeal the district court’s order

denying relief on his motion filed under Fed. R. Civ. P. 60(b).

The district court found that Montoya’s motion actually sought

relief under 28 U.S.C. § 2255 (2000) and dismissed the action

because he failed to first obtain authorization from this Court to

file a successive § 2255 motion. See 28 U.S.C. § 2244(a). The

order is not appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A

certificate of appealability will not issue absent “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2000). A prisoner satisfies this standard by

demonstrating that reasonable jurists would find that the district

court’s assessment of his constitutional claims is debatable and

that any dispositive procedural rulings by the district court are

also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,

336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.

Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently

reviewed the record and conclude that Montoya has not made the

requisite showing. Because Montoya’s Rule 60(b) motion did not

assert a defect in the original collateral review process itself,

but rather argued the merits of his § 2255 motion based on new case

law, reasonable jurists would not find debatable or wrong the

district court’s characterization of the Rule 60(b) motion as a

successive § 2255 motion under our decision in United States v.

- 2 - Winestock, 340 F.3d 200, 207 (4th Cir. 2003). Accordingly, we deny

a certificate of appealability and dismiss the appeal.

To the extent that Montoya’s notice of appeal and

informal brief could be construed as a motion for authorization to

file a successive § 2255 motion, we deny such authorization.

Winestock, 340 F.3d at 208. We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

DISMISSED

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