                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-8356


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

BARKLEY GARDNER, a/k/a Big Black,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (4:95-cr-00041-H-8)


Submitted:    March 12, 2009                   Decided:    March 17, 2009


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


Dismissed by unpublished per curiam opinion.


Barkley Gardner, Appellant Pro Se. Steve R. Matheny, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Barkley Gardner seeks to appeal the district court’s

order denying his Fed. R. Civ. P. 60(b) motion.                                   Because the

motion attacked Gardner’s convictions, it was a successive 28

U.S.C.A. § 2255 (West Supp. 2008) motion, and the district court

did not have authorization to consider the 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) (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).           A   prisoner        satisfies         this

standard     by    demonstrating       that    reasonable           jurists       would    find

that any assessment of the constitutional claims by the district

court is debatable or wrong and that any dispositive procedural

ruling by the district court is likewise debatable.                                   Miller-

El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,

529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th

Cir.   2001).        We   have    independently          reviewed       the       record    and

conclude       Gardner      has    not        made       the        requisite        showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.

             Additionally, we construe Gardner’s notice of appeal

and    informal     brief    as   an    application            to    file     a    second    or

                                          2
successive motion under 28 U.S.C.A. § 2255.                      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) 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 movant guilty of the

offense.       28 U.S.C.A. §§ 2244(b)(2), 2255 (West 2006 & Supp.

2008).       Gardner’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




                                            3
