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    United States v. Mora, 4th Cir. (2009)

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    Jose Jesus Mora appealed the denial of his motion for return of property and the denial of his 28 U.S.C. § 2255 motion. The court dismissed the appeal of the § 2255 motion due to Mora's failure to obtain a certificate of appealability. However, the court vacated the denial of Mora's motion for return of property, finding that the district court erred by summarily denying the second such motion without determining whether the FBI's investigation was complete or seeking a response from the government. The case was remanded for further proceedings on the motion for return of property.

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    Public Domain
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    United States v. Mora, 4th Cir. (2009)

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    Jose Jesus Mora appealed the denial of his motion for return of property and the denial of his 28 U.S.C. § 2255 motion. The court dismissed the appeal of the § 2255 motion due to Mora's failure to obtain a certificate of appealability. However, the court vacated the denial of Mora's motion for return of property, finding that the district court erred by summarily denying the second such motion without determining whether the FBI's investigation was complete or seeking a response from the government. The case was remanded for further proceedings on the motion for return of property.

    Original Description:

    Filed: 2009-12-01 Precedential Status: Non-Precedential Docket: 09-6879

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    Jose Jesus Mora appealed the denial of his motion for return of property and the denial of his 28 U.S.C. § 2255 motion. The court dismissed the appeal of the § 2255 motion due to Mora's failure to obtain a certificate of appealability. However, the court vacated the denial of Mora's motion for return of property, finding that the district court erred by summarily denying the second such motion without determining whether the FBI's investigation was complete or seeking a response from the government. The case was remanded for further proceedings on the motion for return of property.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    13 views5 pages

    United States v. Mora, 4th Cir. (2009)

    Uploaded by

    Scribd Government Docs
    Jose Jesus Mora appealed the denial of his motion for return of property and the denial of his 28 U.S.C. § 2255 motion. The court dismissed the appeal of the § 2255 motion due to Mora's failure to obtain a certificate of appealability. However, the court vacated the denial of Mora's motion for return of property, finding that the district court erred by summarily denying the second such motion without determining whether the FBI's investigation was complete or seeking a response from the government. The case was remanded for further proceedings on the motion for return of property.

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    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 09-6879

    UNITED STATES OF AMERICA,


    Plaintiff Appellee,
    v.
    JOSE JESUS MORA, a/k/a Jose Jesus Nuesslein, a/k/a Joe Mora,
    a/k/a Jose Jesus Neusslein,
    Defendant Appellant.

    No. 09-7405

    UNITED STATES OF AMERICA,


    Plaintiff Appellee,
    v.
    JOSE JESUS MORA, a/k/a Jose Jesus Nuesslein, a/k/a Joe Mora,
    a/k/a Jose Jesus Neusslein,
    Defendant Appellant.

    Appeals from the United States District Court for the Eastern
    District of Virginia, at Norfolk. Raymond A. Jackson, District
    Judge. (2:07-cr-00062-RAJ-JEB-1; 2:08-cv-00361-RAJ)

    Submitted:

    November 9, 2009

    Decided:

    December 1, 2009

    Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior


    Circuit Judge.

    No. 09-6879 vacated and remanded;


    unpublished per curiam opinion.

    Jose Jesus Mora, Appellant Pro Se.


    Assistant
    United
    States
    Attorney,
    Appellee.

    No.

    09-7405

    dismissed

    Stephen Westley Haynie,


    Norfolk,
    Virginia,
    for

    Unpublished opinions are not binding precedent in this circuit.

    by

    PER CURIAM:
    In these consolidated appeals, Jose Jesus Mora seeks
    to appeal various orders of the district court, including its
    order denying Moras Fed. R. Crim. P. 41(g) motion for return of
    property,

    as

    well

    as

    its

    order

    denying

    relief

    28 U.S.C.A. 2255 (West Supp. 2008) motion.

    on

    Moras

    With regard to

    Appeal No. 09-7405, an appeal may not be taken from the final
    order in a 2255 proceeding unless a circuit justice or judge
    issues a certificate of appealability.
    (2006).

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

    A certificate of appealability will not issue absent a

    substantial showing of the denial of a constitutional right.


    28

    U.S.C.

    standard

    2253(c)(2)

    by

    (2006).

    demonstrating

    that

    prisoner

    reasonable

    satisfies

    jurists

    would

    this
    find

    that any assessment of the constitutional claims by the district


    court is debatable or wrong and that any dispositive procedural
    ruling

    by

    the

    district

    court

    is

    likewise

    debatable.

    Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.


    McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
    683-84

    (4th Cir.

    record

    and

    showing.

    2001).

    conclude

    that

    We

    have

    Mora

    independently

    has

    not

    made

    reviewed
    the

    the

    requisite

    Accordingly, we deny a certificate of appealability in

    Appeal No. 09-7405, deny all pending motions in that appeal, and
    dismiss the appeal.

    We
    denying

    nonetheless

    Moras

    Rule

    vacate

    41(g)

    Appeal No. 09-6879. *

    the

    motion

    district

    for

    return

    courts
    of

    order

    property

    in

    The denial of a Rule 41(g) motion for

    return of property is reviewed for an abuse of discretion.

    See

    United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999).

    district court abuses its discretion when it fails or refuses to


    exercise its discretion or when its exercise of discretion is
    flawed

    by

    an

    erroneous

    legal

    or

    factual

    premise.

    Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

    James

    v.

    Perhaps its most

    obvious manifestation is in a failure or refusal, either express


    or implicit, actually to exercise discretion, deciding instead
    as if by general rule, or even arbitrarily, as if neither by
    rule nor discretion.

    See id.

    In its order denying Moras first motion for return of


    property,
    still

    the

    district

    retaining

    Moras

    court

    stated

    property

    for

    that

    the

    Government

    investigative

    was

    purposes.

    The district court correctly denied this motion based on the


    Governments

    assurances

    that

    the

    evidence

    was

    still

    being

    With the exception of the district courts order denying


    Moras Rule 41(g) motion in Appeal No. 09-6879, we find that the
    remaining orders challenged by Mora in that appeal did not
    become final appealable orders until the district court
    dismissed Moras 2255 motion.
    Thus, to the extent that Mora
    challenges other orders in Appeal No. 09-6879, we reject his
    challenges as part of our dismissal of Appeal No. 09-7405.

    investigated by the FBI, and that it would attempt to expedite


    the FBIs analysis.
    We nonetheless find that it was error for the district
    court

    to

    summarily

    deny

    Moras

    second

    motion

    for

    return

    of

    property, which was filed nearly one year after Moras first
    motion and nearly nine months after Moras convictions and
    sentence were affirmed by this court without first determining
    whether the FBIs investigation was complete.
    the

    Government

    was

    required

    to

    establish

    In fact, although
    that

    it

    was

    still

    justified in retaining Moras property, see Chambers, 192 F.3d


    at

    377,

    the

    district

    court

    did

    not

    seek

    the

    Governments

    basis

    establishing

    response before summarily denying the motion.


    Because

    there

    is

    no

    independent

    that the district court properly exercised its discretion in


    denying the Rule 41(g) motion, we vacate the district courts
    January 14, 2009 order denying Moras Rule 41(g) motion, and
    remand for further proceedings.

    We deny all pending motions in

    Appeal No. 09-6879 and dispense with oral argument because the
    facts

    and

    materials

    legal
    before

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in

    the

    aid

    the

    decisional process.
    No. 09-6879 VACATED AND REMANDED
    No. 09-7405 DISMISSED

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