               Dismissed by Supreme Court, October 6, 2014



                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-8009


ALEJANDRO HERNANDEZ,

                Petitioner - Appellant,

          v.

UNITED STATES OF AMERICA,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Claude M. Hilton, Senior
District Judge. (1:13-cv-00925-CMH-TRJ; 1:91-cr-00139-CMH-3)


Submitted:   February 27, 2014                 Decided:      March 5, 2014


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Alejandro Dejesus Hernandez, 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Unpublished opinions are not binding precedent in this circuit.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:

             Alejandro      Hernandez    seeks     to      appeal    the     district

court’s order construing his pleading as a successive 28 U.S.C.

§ 2255 (2012) motion, and dismissing it on that basis.                       We find

no error in the court’s decision to construe the pleading as a

§ 2255 motion.         The court’s order is not appealable unless a

circuit justice or judge issues a certificate of appealability.

28   U.S.C.     § 2253(c)(1)(B)          (2012).            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)

(2012).    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 motion 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 Hernandez has not made the requisite showing.                     Accordingly,

we deny a certificate of appealability and dismiss the appeal.



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            Additionally, we construe Hernandez’s notice of appeal

and   informal    brief    as    an    application     to   file    a    second   or

successive § 2255 motion.             United States v. Winestock, 340 F.3d

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

file a successive § 2255 motion, a prisoner must assert claims

based on either:

      (1) newly discovered evidence that . . . would be
      sufficient to establish by clear and convincing
      evidence that no reasonable factfinder would have
      found the movant guilty of the offense; or

      (2) a new rule of constitutional law, made retroactive
      to cases on collateral review by the Supreme Court,
      that was previously unavailable.

28 U.S.C. § 2255(h) (2012).             Hernandez’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   this    court    and   argument      would   not   aid    the   decisional

process.



                                                                          DISMISSED




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