                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-7387



JERRY W. NELSON,

                                            Petitioner - Appellant,

          versus


HENRY MCMASTER, Attorney General;       WARDEN,
Lieber Correctional Institution,

                                            Respondents - Appellees.


Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:06-cv-01729, HMH)


Submitted: October 17, 2006                 Decided: October 24, 2006


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Jerry W. Nelson, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Jerry W. Nelson seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

dismissing his 28 U.S.C. § 2254 (2000) petition as successive. The

order is not appealable unless a circuit justice or judge issues a

certificate of appealability.        28 U.S.C. § 2253(c)(1) (2000).          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 Nelson has not

made the requisite showing.     Accordingly, we deny a certificate of

appealability and dismiss the appeal.

           Additionally, we construe Nelson’s notice of appeal and

informal brief as an application to file a second or successive

petition under 28 U.S.C. § 2254.       United States v. Winestock, 340

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

file a successive § 2254 petition, a prisoner must assert claims

based on either:    (1) a new rule of constitutional law, previously


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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

petitioner guilty of the offense.            28 U.S.C. § 2244(b)(2) (2000).

Nelson’s    claims     do    not   satisfy    either   of    these       criteria.

Therefore, we deny authorization to file a successive § 2254

petition.

            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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