                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-8088


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PETE DIAMOND HIRST, a/k/a Pete Harris,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.      Raymond A. Jackson,
District Judge. (4:02-cr-00134-RAJ-TEM-1; 4:09-cv-00145-RAJ)


Submitted:   February 25, 2010            Decided:   March 9, 2010


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Pete Diamond Hirst, Appellant Pro Se. Fernando Groene, OFFICE
OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Pete    Diamond     Hirst      seeks       to    appeal        the   district

court’s order treating his “Pro Se Nunc Pro Tunc” motion as a

successive      28    U.S.C.A.    § 2255         (West   Supp.       2009)    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 Hirst has

not    made     the   requisite       showing.           Accordingly,         we    deny    a

certificate of appealability, deny leave to proceed in forma

pauperis, and dismiss the appeal.

              Additionally, we construe Hirst’s notice of appeal and

informal brief as an application to file a second or successive

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

                                             2
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.       2009).         Hirst’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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