United States v. Ricardo Arce

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6845

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

RICARDO ARCE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-cr-00111-BO-1; 5:10-cv-00078-BO)

Submitted: November 15, 2011 Decided: November 17, 2011

Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Ricardo Arce, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Seth Morgan Wood, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Ricardo Arce seeks to appeal the district court’s

order denying his Fed. R. Civ. P. 60(b) motion. * The order is

not appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (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). 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 Arce has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.

*
Because the Rule 60(b) motion directly attacked Arce’s sentence, it
was, in essence, an unauthorized and successive 28 U.S.C.A. § 2255 (West
Supp. 2011) motion over which the district court lacked jurisdiction. See
United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003).
 Additionally, we construe Arce’s notice of appeal and

informal brief as an application to file a second or successive

§ 2255 motion. Winestock, 340 F.3d at 208. 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. 2011). Arce’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