USCA4 Appeal: 24-6632 Doc: 9 Filed: 10/18/2024 Pg: 1 of 3

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-6632

MARIO ANTON LEE, Petitioner - Appellant, v. WARDEN, U.S.P. Hazelton, Respondent - Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:20-cv-00180-GMG)

Submitted: October 9, 2024 Decided: October 18, 2024

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

Dismissed by unpublished per curiam opinion.

Mario Anton Lee, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Mario Anton Lee seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(b) motion for relief from the district court’s prior order denying relief on a pleading we have previously construed as Lee’s 28 U.S.C. § 2255 motion. * See Lee v. Warden, No. 21-7223, 2021 WL 5579188, at *1 (4th Cir. Nov. 30, 2021). The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists could find the district court’s assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Limiting our review of the record to the issues raised in Lee’s informal brief, we conclude that Lee has not made the requisite showing, as he fails to challenge the district court’s dispositive finding that his Rule 60(b) motion was untimely. See 4th Cir. R. 34(b);

* Lee identified his original filing as a 28 U.S.C. § 2241 petition but, because Lee challenged the legality of his sentence, we construed Lee’s petition as a 28 U.S.C. § 2255 motion. See Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015) (“As a general matter, a federal prisoner must challenge the execution of a sentence under 28 U.S.C. § 2241, and the sentence itself under 28 U.S.C. § 2255.”).

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see also Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit rules, our review is limited to issues preserved in that brief.”). Accordingly, we deny a certificate of appealability and dismiss the appeal.

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