                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-7684


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

ALPHONSO DAVIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:95-cr-00059-FDW-1)


Submitted:   February 24, 2011              Decided:   March 3, 2011


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Alphonso Davis, Appellant Pro Se. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Alphonso Davis seeks to appeal the district court’s

order denying his motion to vacate the order treating his Fed.

R. Civ. P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West

Supp. 2010) 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) (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    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      Davis       has    not       made         the   requisite        showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.

                                                 2
            Additionally, we construe Davis’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,             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;      or      (2)     a       new     rule    of

constitutional law, previously unavailable, made retroactive by

the Supreme Court to cases on collateral review.                                      28 U.S.C.A.

§ 2255(h) (West           Supp.      2010).         Davis’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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