                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-6513


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STANLEY HOBEREK,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:99-cr-00013-FPS-JES-1)


Submitted:   September 28, 2010           Decided:   October 4, 2010


Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Stanley Hoberek, Appellant Pro Se. Robert Hugh McWilliams, Jr.,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Stanley Hoberek 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. 2010) 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).                       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    Hoberek       has      not       made    the    requisite        showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.



                                                   2
            Additionally, we construe Hoberek’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. 2010).                   Hoberek’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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