                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6990


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

PJ JAMAL GILYARD,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.    Graham C. Mullen,
Senior District Judge.  (3:03-cr-00134-GCM-CH-7; 3:07-cv-00488-
GCM)


Submitted:    September 29, 2009            Decided:   October 8, 2009


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


PJ Jamal Gilyard, Appellant Pro Se. Keith Michael Cave, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            PJ Jamal Gilyard seeks to appeal the district court’s

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

28 U.S.C.A. § 2255 (West Supp. 2009) motion, and dismissing it

on that basis.           The order is not appealable unless a circuit

justice    or    judge    issues    a    certificate        of    appealability.         28

U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369

(4th Cir. 2004).         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).                       A prisoner satisfies

this   standard     by    demonstrating          that     reasonable      jurists   would

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.    2001).        We   have    independently         reviewed      the

record    and    conclude    that       Gilyard     has    not    made    the   requisite

showing.        Accordingly, we deny a certificate of appealability

and dismiss the appeal.

            Additionally, we construe Gilyard’s notice of appeal

and    informal    brief    as     an    application        to     file   a     second   or

successive motion under 28 U.S.C.A. § 2255.                         United States v.

Winestock, 340 F.3d 200, 208 (4th Cir. 2003).                              In order to

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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. 2009).

Gilyard’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




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