                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-8385


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

LUIS BONILLA,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.       Leonie M. Brinkema,
District Judge. (1:95-cr-00522-LMB-2; 1:08-cv-01039-LMB)


Submitted:    January 15, 2009               Decided:   January 26, 2009


Before MOTZ and      SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Luis Bonilla, Appellant Pro Se.   Bernard James Apperson, III,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Luis       Bonilla   seeks    to    appeal    the     district     court’s

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

28 U.S.C. § 2255 (2000) 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)

(2000); 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)      (2000).         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       Bonilla   has     not    made    the   requisite       showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.

            Additionally, we construe Bonilla’s notice of appeal

and    informal    brief    as   an     application      to     file    a   second     or

successive motion under 28 U.S.C. § 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) a new rule of

constitutional law, previously unavailable, made retroactive by

the Supreme Court to cases on collateral review; or (2) 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.       28   U.S.C.    §§ 2244(b)(2),           2255   (2000).       Bonilla’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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