                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6595


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KELVIN ANDRE SPOTTS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.   Robert C. Chambers,
District Judge. (3:98-cr-00047-1; 3:00-cv-00647)


Submitted:    May 18, 2009                  Decided:   June 4, 2009


Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Kelvin Andre Spotts, Appellant Pro Se. John J. Frail, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Kelvin     Andre    Spotts        seeks     to    appeal        the   district

court’s order treating his Fed. R. Civ. P. 60(b) motion as a

successive      28    U.S.C.A.     § 2255       (West    Supp.       2008)     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).       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 that Spotts has

not    made     the    requisite        showing.         Accordingly,          we   deny    a

certificate of appealability and dismiss the appeal.

              Additionally, we construe Spotts’ notice of appeal and

informal brief as an application to file a second or successive

motion under 28 U.S.C. § 2255.                     United States v. Winestock, 340

F.3d 200, 208 (4th Cir. 2003).                  In order to obtain authorization

                                               2
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.   2008).        Spotts’       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
