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    United States v. Ward Mohler, 4th Cir. (2012)

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    This document summarizes a United States Court of Appeals case involving Ward Everette Mohler seeking to appeal a district court order. The district court treated Mohler's Rule 60(b) motion as a successive 28 U.S.C. § 2255 motion and dismissed it. The Court of Appeals denies Mohler's request for a certificate of appealability and dismisses the appeal. It also construes his notice of appeal and informal brief as a request to file a second § 2255 motion, which it denies because his claims do not meet the statutory criteria for successor motions.

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    United States v. Ward Mohler, 4th Cir. (2012)

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    Scribd Government Docs
    33 views3 pages
    This document summarizes a United States Court of Appeals case involving Ward Everette Mohler seeking to appeal a district court order. The district court treated Mohler's Rule 60(b) motion as a successive 28 U.S.C. § 2255 motion and dismissed it. The Court of Appeals denies Mohler's request for a certificate of appealability and dismisses the appeal. It also construes his notice of appeal and informal brief as a request to file a second § 2255 motion, which it denies because his claims do not meet the statutory criteria for successor motions.

    Original Description:

    Filed: 2012-11-15 Precedential Status: Non-Precedential Docket: 12-7113

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    This document summarizes a United States Court of Appeals case involving Ward Everette Mohler seeking to appeal a district court order. The district court treated Mohler's Rule 60(b) motion as a successive 28 U.S.C. § 2255 motion and dismissed it. The Court of Appeals denies Mohler's request for a certificate of appealability and dismisses the appeal. It also construes his notice of appeal and informal brief as a request to file a second § 2255 motion, which it denies because his claims do not meet the statutory criteria for successor motions.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    33 views3 pages

    United States v. Ward Mohler, 4th Cir. (2012)

    Uploaded by

    Scribd Government Docs
    This document summarizes a United States Court of Appeals case involving Ward Everette Mohler seeking to appeal a district court order. The district court treated Mohler's Rule 60(b) motion as a successive 28 U.S.C. § 2255 motion and dismissed it. The Court of Appeals denies Mohler's request for a certificate of appealability and dismisses the appeal. It also construes his notice of appeal and informal brief as a request to file a second § 2255 motion, which it denies because his claims do not meet the statutory criteria for successor motions.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 12-7113

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    WARD EVERETTE MOHLER,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of Virginia, at Harrisonburg.
    Glen E. Conrad, Chief
    District Judge. (5:12-cv-80449-GEC-RSB; 5:91-cr-00131-GEC-2)

    Submitted:

    November 13, 2012

    Decided: November 15, 2012

    Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Ward Everette Mohler, Appellant Pro Se.


    Jean Barrett Hudson,
    Assistant United States Attorney, Charlottesville, Virginia, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Ward

    Everette

    Mohler

    seeks

    to

    appeal

    the

    district

    courts order treating his Fed. R. Civ. P. 60(b) motion as a


    successive

    28

    U.S.C.A.

    2255

    dismissing it on that basis.


    a

    circuit

    justice

    appealability.

    or

    (West

    Supp.

    2012)

    motion,

    and

    The order is not appealable unless


    judge

    issues

    certificate

    28 U.S.C. 2253(c)(1)(B) (2006).

    of

    A certificate

    of appealability will not issue absent a substantial showing of


    the denial of a constitutional right.
    (2006).

    When the district court denies relief on the merits, a

    prisoner

    satisfies

    this

    reasonable

    jurists

    would

    assessment

    of

    constitutional

    wrong.

    28 U.S.C. 2253(c)(2)

    the

    standard
    find

    by

    that

    demonstrating

    the

    claims

    district
    is

    that

    courts

    debatable

    or

    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 Mohler has not made the requisite showing.

    Accordingly, we

    deny a certificate of appealability and dismiss the appeal.


    Additionally,
    and

    informal

    brief

    as

    we
    an

    construe

    Mohlers

    application
    2

    to

    notice
    file

    of

    appeal

    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:
    discoverable
    establish

    by

    by

    (1) newly discovered evidence, not previously


    due

    diligence,

    clear

    and

    that

    convincing

    would

    be

    evidence

    sufficient
    that,

    but

    to
    for

    constitutional error, no reasonable factfinder would have found


    the

    movant

    guilty

    of

    the

    offense;

    or

    (2)

    new

    rule

    of

    constitutional law, previously unavailable, made retroactive by


    the Supreme Court to cases on collateral review.
    2255(h) (West Supp. 2012).
    either of these criteria.

    28 U.S.C.A.

    Mohlers claims do not satisfy

    Therefore, we deny authorization to

    file a successive 2255 motion.


    We dispense with oral argument because the facts and
    legal
    before

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in
    aid

    the
    the

    materials
    decisional

    process.

    DISMISSED

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