                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-6841


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ORRIS L. AVENT, a/k/a Junie Red,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Arenda Wright Allen,
District Judge. (4:99-cr-00055-AWA-5)


Submitted:   July 19, 2012                    Decided:   July 26, 2012


Before DUNCAN, AGEE, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Orris L. Avent, Appellant      Pro Se.       Timothy Richard Murphy,
Special   Assistant  United     States     Attorney,  Newport  News,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Orris L. Avent seeks to appeal the district court’s

order    treating    his   motion      to       dismiss      the      indictment    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 Avent has not made the requisite showing.                         Accordingly, we

deny a certificate of appealability and dismiss the appeal.

            Additionally, we construe Avent’s 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,              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).         Avent’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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