UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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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