UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6466
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STANLEY HOBEREK,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:99-cr-00013-FPS-JES-1;
5:00-cv-00184-FPS-JES)
Submitted: September 29, 2009 Decided: October 6, 2009
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Stanley Hoberek, Appellant Pro Se. Robert Hugh McWilliams, Jr.,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanley Hoberek seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge,
treating his Fed. R. Civ. P. 60(b) motions as successive 28
U.S.C.A. § 2255 (West Supp. 2009) motions, and dismissing them
on that basis. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369
(4th Cir. 2004). 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) (2006). A prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that any assessment of the constitutional claims by the
district court is debatable or wrong and that any dispositive
procedural ruling by the district court is likewise debatable.
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,
683-84 (4th Cir. 2001). We have independently reviewed the
record and conclude that Hoberek has not made the requisite
showing. Accordingly, we deny Hoberek’s motion for a
certificate of appealability and dismiss the appeal.
Additionally, we construe Hoberek’s notice of appeal
and informal brief as an application to file a second or
successive motion under 28 U.S.C.A. § 2255. United States v.
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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, not previously discoverable by due
diligence, that would be sufficient to establish by clear and
convincing evidence that, but 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. 28 U.S.C.A. § 2255(h) (West Supp. 2009).
Hoberek’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 contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED
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