UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6879
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE JESUS MORA, a/k/a Jose Jesus Nuesslein, a/k/a Joe Mora,
a/k/a Jose Jesus Neusslein,
Defendant – Appellant.
No. 09-7405
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE JESUS MORA, a/k/a Jose Jesus Nuesslein, a/k/a Joe Mora,
a/k/a Jose Jesus Neusslein,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:07-cr-00062-RAJ-JEB-1; 2:08-cv-00361-RAJ)
Submitted: November 9, 2009 Decided: December 1, 2009
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
No. 09-6879 vacated and remanded; No. 09-7405 dismissed by
unpublished per curiam opinion.
Jose Jesus Mora, Appellant Pro Se. Stephen Westley Haynie,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Jose Jesus Mora seeks
to appeal various orders of the district court, including its
order denying Mora’s Fed. R. Crim. P. 41(g) motion for return of
property, as well as its order denying relief on Mora’s
28 U.S.C.A. § 2255 (West Supp. 2008) motion. With regard to
Appeal No. 09-7405, an appeal may not be taken from the final
order in a § 2255 proceeding unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2006). 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 Mora has not made the requisite
showing. Accordingly, we deny a certificate of appealability in
Appeal No. 09-7405, deny all pending motions in that appeal, and
dismiss the appeal.
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We nonetheless vacate the district court’s order
denying Mora’s Rule 41(g) motion for return of property in
Appeal No. 09-6879. * The denial of a Rule 41(g) motion for
return of property is reviewed for an abuse of discretion. See
United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999). A
district court abuses its discretion when it fails or refuses to
exercise its discretion or when its exercise of discretion is
flawed by an erroneous legal or factual premise. James v.
Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). “Perhaps its most
obvious manifestation is in a failure or refusal, either express
or implicit, actually to exercise discretion, deciding instead
as if by general rule, or even arbitrarily, as if neither by
rule nor discretion.” See id.
In its order denying Mora’s first motion for return of
property, the district court stated that the Government was
still retaining Mora’s property “for investigative purposes.”
The district court correctly denied this motion based on the
Government’s assurances that the evidence was still being
*
With the exception of the district court’s order denying
Mora’s Rule 41(g) motion in Appeal No. 09-6879, we find that the
remaining orders challenged by Mora in that appeal did not
become final appealable orders until the district court
dismissed Mora’s § 2255 motion. Thus, to the extent that Mora
challenges other orders in Appeal No. 09-6879, we reject his
challenges as part of our dismissal of Appeal No. 09-7405.
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investigated by the FBI, and that it would attempt to expedite
the FBI’s analysis.
We nonetheless find that it was error for the district
court to summarily deny Mora’s second motion for return of
property, which was filed nearly one year after Mora’s first
motion — and nearly nine months after Mora’s convictions and
sentence were affirmed by this court — without first determining
whether the FBI’s investigation was complete. In fact, although
the Government was required to establish that it was still
justified in retaining Mora’s property, see Chambers, 192 F.3d
at 377, the district court did not seek the Government’s
response before summarily denying the motion.
Because there is no independent basis establishing
that the district court properly exercised its discretion in
denying the Rule 41(g) motion, we vacate the district court’s
January 14, 2009 order denying Mora’s Rule 41(g) motion, and
remand for further proceedings. We deny all pending motions in
Appeal No. 09-6879 and 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.
No. 09-6879 VACATED AND REMANDED
No. 09-7405 DISMISSED
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