                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6465


ANTHONY TYRONE KELLY, a/k/a Anthony T. Kelley,

                Petitioner - Appellant,

          v.

SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; COLIE L. RUSHTON,
Warden   of   McCormick  Correctional   Institution;  HENRY
MCMASTER,

                Respondents - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.   Terry L. Wooten, District Judge.
(8:05-cv-00454-TLW)


Submitted:   June 1, 2010                  Decided:   June 9, 2010


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Anthony Tyrone Kelly, Appellant Pro Se.      Samuel Creighton
Waters, Assistant Attorney General, Columbia, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Anthony    Tyrone      Kelly       seeks    to    appeal        the    district

court’s order treating his Fed. R. Civ. P. 60(b) motion as an

unauthorized successive 28 U.S.C. § 2254 (2006) petition, 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 petition 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

Kelly has not made the requisite showing.                        Accordingly, we deny

a certificate of appealability and dismiss the appeal.



                                             2
              Additionally, we construe Kelly’s notice of appeal and

informal brief as an application to file a second or successive

§ 2254 petition.          United States v. Winestock, 340 F.3d 200, 208

(4th Cir. 2003).            In order to obtain authorization to file a

successive § 2254 petition, 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 petitioner guilty of the offense.                                28 U.S.C.

§ 2244(b)(2) (2006).              Kelly’s claims do not satisfy either of

these    criteria.        Therefore,      we       deny    authorization        to   file    a

successive § 2254 petition.

              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




                                               3
