                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-7992


GARY WAYNE HENDRICKS,

                Petitioner - Appellant,

          v.

COMMONWEALTH OF VIRGINIA,

                Respondent - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       James C. Turk, Senior
District Judge. (7:13-cv-00514-JCT-RSB)


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


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Gary Wayne Hendricks, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

            Gary     Wayne    Hendricks          seeks   to     appeal      the   district

court’s order treating his motion for declaratory judgment as a

successive 28 U.S.C. § 2254 (2012) 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) (2012); 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) (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 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 Hendricks 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 Hendricks’ 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) (2012).         Hendricks’ 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    this   court     and   argument     would    not    aid    the    decisional

process.

                                                                             DISMISSED




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