                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-6755


SAMUEL RICARDO HATCHER, JR.,

                Petitioner – Appellant,

          v.

GENE M. JOHNSON,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:12-cv-00270-HEH)


Submitted:   August 13, 2012                 Decided:    August 16, 2012


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


Dismissed by unpublished per curiam opinion.


Samuel Ricardo Hatcher, Jr., Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

            Samuel        Ricardo   Hatcher,        Jr.,   seeks        to   appeal      the

district court’s order treating his Fed. R. Civ. P. 60(b) motion

as a successive 28 U.S.C. § 2254 (2006) petition, 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)(A) (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).                  When the

district court denies relief on the merits, a prisoner satisfies

this    standard     by    demonstrating         that   reasonable       jurists      would

find that the district court’s assessment of the constitutional

claims is debatable or wrong.                Slack v. McDaniel, 529 U.S. 473,

484    (2000);     see    Miller-El     v.   Cockrell,      537    U.S.      322,   336-38

(2003).     When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable, and that the petition states a

debatable claim of the denial of a constitutional right.                            Slack,

529 U.S. at 484-85.

            We have independently reviewed the record and conclude

that Hatcher has not made the requisite showing.                             Accordingly,

we deny a certificate of appealability, deny leave to proceed in

forma pauperis, and dismiss the appeal.

                                             2
              Additionally, we construe Hatcher’s notice of appeal

and   informal      brief   as    an   application       to   file    a     second      or

successive § 2254 petition.            See 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 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) (2006).            Hatcher’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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