Case: 11-40005 Document: 00511513763 Page: 1 Date Filed: 06/20/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 20, 2011
No. 11-40005
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL RUIZ, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:08-CV-77
USDC No. 2:05-CR-643-2
Before WIENER, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Miguel Ruiz, Jr., federal prisoner # 57857-179, seeks
(1) a certificate of appealability (COA) to appeal the district court’s denial of his
motion to reopen sentencing, which the district court construed as an
unauthorized successive 28 U.S.C. § 2255 motion, and (2) authorization, nunc
pro tunc, for leave to file a successive § 2255 motion, so as to challenge the
sentence imposed following his guilty-plea conviction of possession with intent
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 11-40005 Document: 00511513763 Page: 2 Date Filed: 06/20/2011
No. 11-40005
to distribute 4.83 kilograms of cocaine. He asserts that the district court
improperly applied an enhancement pursuant to U.S.S.G. § 4B1.1.
To obtain a COA, Ruiz must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). When, as here, the district court’s denial of relief is based
solely on procedural grounds, a COA may issue “when the prisoner shows, at
least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Ruiz has not made the
requisite showing. Consequently, his motion for a COA is denied.
Before a successive § 2255 motion may be filed in the district court, the
putative movant must obtain authorization from this court for the district court
to consider the motion. 28 U.S.C. § 2244(b)(3)(A); § 2255. We may authorize the
filing of a successive § 2255 motion only if the movant makes a prima facie
showing that his claim relies on either (1) newly discovered evidence that, if
proved and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable factfinder would
have found him guilty of the underlying offense; or (2) a new rule of
constitutional law that was previously unavailable has been made retroactive
by the Supreme Court to cases on collateral review. § 2244(b)(2); § 2255. Ruiz
has not made the requisite showing. Consequently, his motion for authorization
to file a successive § 2255 motion is also denied.
COA DENIED; MOTION FOR AUTHORIZATION DENIED.
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