                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6466


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;
5:00-cv-00184-FPS-JES)


Submitted:    September 29, 2009            Decided:   October 6, 2009


Before NIEMEYER, MICHAEL, and MOTZ, 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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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    accepting       the   recommendation             of    the    magistrate       judge,

treating his Fed. R. Civ. P. 60(b) motions as successive 28

U.S.C.A. § 2255 (West Supp. 2009) motions, and dismissing them

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).                           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      Hoberek      has      not    made    the   requisite

showing.          Accordingly,        we       deny       Hoberek’s          motion     for    a

certificate of appealability and dismiss the appeal.

            Additionally, we construe Hoberek’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.

                                               2
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. 2009).

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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