                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-7825


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CALVIN LEE EVERETTE,

                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:01-cr-00068-BO-1; 5:04-cv-00358-BO)


Submitted:   February 26, 2013            Decided:   February 28, 2013


Before MOTZ, WYNN, and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Calvin Lee Everette, Appellant Pro Se. Sebastian Kielmanovich,
Jennifer P. May-Parker, Assistant United States Attorneys,
Joshua Bryan Royster, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Calvin    Lee    Everette        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.          2012)    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)(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 Everette has not made the requisite showing.                             Accordingly,

we deny Everette’s motion for a certificate of appealability and

dismiss the appeal.



                                         2
            Additionally, we construe Everette’s notice of appeal

and   informal       brief     as     an    application         to   file       a     second    or

successive § 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, 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. 2012).                  Everette’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   this       court    and    argument       would    not      aid       the    decisional

process.



                                                                                       DISMISSED




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