                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4206


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN HENRY STACKS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:01-cr-00135-MOC-1)


Submitted:   May 23, 2013                       Decided:   May 28, 2013


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


Dismissed by unpublished per curiam opinion.


John Henry Stacks, Jr., Appellant Pro Se.    Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellant.


Unpublished opinions are not binding precedent in this circuit.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

            John Henry Stacks, Jr., seeks to appeal the district

court’s order treating his motion for an evidentiary hearing as

a successive 28 U.S.C.A. § 2255 (West Supp. 2012) motion, and

denying 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)(B)         (2006).            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 Stacks has not made the requisite showing.                  Accordingly, we

deny a certificate of appealability and dismiss the appeal.

            Additionally, we construe Stacks’ notice of appeal and

informal brief as an application to file a second or successive

                                        2
§ 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.A. § 2255(h) (West Supp. 2012).            Stacks’ 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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