                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-7465


JAMES EARL JONES,

                Petitioner – Appellant,

          v.

LORETTA KELLY, Warden,

                Respondent – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:07-cv-00066-CMH-BRP)


Submitted:   March 31, 2011                  Decided:   April 11, 2011


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


Dismissed by unpublished per curiam opinion.


James Earl Jones, Appellant Pro Se.         Virginia Bidwell Theisen,
Senior Assistant Attorney General,          Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              James Earl Jones 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) (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       Jones    has   not        made     the   requisite          showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.



                                              2
              Additionally, we construe Jones’ notice of appeal and

informal brief as an application to file a second or successive

§ 2254 petition.          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).               Jones’ 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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