                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-7587



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


SAMUEL BENJAMIN KELLY,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:98-cv-00569; 2:94-cr-00163-RBS-4)


Submitted: November 15, 2006              Decided:   November 27, 2006


Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Samuel Benjamin Kelly, Appellant Pro Se. Laura P. Tayman, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Samuel   Benjamin    Kelly    seeks   to    appeal   the   district

court’s order treating his motion to reconsider the court’s denial

of 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 Kelly has not made the

requisite    showing.     Accordingly,      we    deny    a   certificate    of

appealability and dismiss the appeal.

            Additionally, we construe Kelly’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).     Kelly’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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