                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-8476


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

DARWIN LEWIS TURNER, a/k/a Abbey,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge.   (5:06-cr-00001-RLV-DCK-2; 5:08-cv-
00133-RLV)


Submitted:    March 12, 2009                   Decided:    March 18, 2009


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


Dismissed by unpublished per curiam opinion.


Darwin Lewis Turner, Appellant Pro Se. Gretchen C.F. Shappert,
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Darwin    Lewis      Turner       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 2006 & 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) (2000); 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)

(2000).       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 Turner has

not   made     the     requisite        showing.        Accordingly,             we     deny   a

certificate of appealability and dismiss the appeal.

              Additionally,        we     construe     Turner’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, 340 F.3d 200, 208 (4th Cir. 2003).                                In order to

                                               2
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. §§ 2244(b)(2), 2255.                 Turner’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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