                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-7022



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DAVID BOYNTON,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, Chief
District Judge. (3:97-cr-00294-JRS)


Submitted:   November 15, 2007       Decided:    November 26, 2007


Before WILLIAMS, Chief Judge, and MOTZ and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David Boynton, Appellant Pro Se.  Charles Everett James, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          David Boynton seeks to appeal the district court’s order

treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.

§ 2255 (2000) 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 Boynton has not made the

requisite showing.      Accordingly, we deny Boynton’s motion for a

certificate of appealability, deny leave to proceed in forma

pauperis, and dismiss the appeal.

          Additionally, we construe Boynton’s 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 to


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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

(2000).   Boynton’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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