UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-8009
ALEJANDRO HERNANDEZ,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:13-cv-00925-CMH-TRJ; 1:91-cr-00139-CMH-3)
Submitted: February 27, 2014 Decided: March 5, 2014
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Alejandro Dejesus Hernandez, Appellant Pro Se. Bernard James
Apperson, III, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alejandro Hernandez seeks to appeal the district
court’s order construing his pleading as a successive 28 U.S.C.
§ 2255 (2012) motion, and dismissing it on that basis. We find
no error in the court’s decision to construe the pleading as a
§ 2255 motion. The court’s order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(B) (2012). 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)
(2012). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable, and that the motion states a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Hernandez has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
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Additionally, we construe Hernandez’s notice of appeal
and informal brief as an application to file a second or
successive § 2255 motion. United States v. 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 that . . . would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255(h) (2012). Hernandez’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 this court and argument would not aid the decisional
process.
DISMISSED
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