                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-6693



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


GREGORY LEE RUTHERFORD,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.    Lacy H. Thornburg,
District Judge. (1:00-cr-00009-11; 1:03-cv-00066)


Submitted: June 15, 2006                       Decided: June 21, 2006


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Gregory Lee Rutherford, Appellant Pro Se.    Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Gregory Lee Rutherford seeks to appeal the district

court's order dismissing his Rule 60(b) motion challenging the

denial of his 28 U.S.C. § 2255 (2000) motion.                 The court found the

motion was successive.           An appeal may not be taken from the final

order in a § 2255 proceeding unless a circuit justice or judge

issues a certificate of appealability.                    28 U.S.C. § 2253(c)(1)

(2000).     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 the district

court’s assessment of his constitutional claims is debatable or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable.             See Miller-El v. Cockrell, 537 U.S.

322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose   v.   Lee,       252    F.3d    676,   683   (4th    Cir.   2001).   We   have

independently reviewed the record and conclude Rutherford has not

made the requisite showing.

            Additionally, we construe Rutherford’s notice of appeal

and informal brief on appeal as an application to file a second or

successive § 2255 motion. See United States v. Winestock, 340 F.3d

200, 208 (4th Cir. 2003).                To obtain authorization to file a

successive § 2255 motion, a prisoner must assert claims based on

either:     (1)    a    new    rule     of   constitutional       law,   previously


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unavailable, made retroactive by the Supreme Court to cases on

collateral review; or (2) newly discovered evidence sufficient to

establish that no reasonable fact finder would have found the

movant   guilty.     28    U.S.C.   §§      2244(b)(3)(C),     2255    (2000).

Rutherford’s claim does not satisfy either of these conditions.

          For      these    reasons,     we    deny     a    certificate     of

appealability, decline to authorize Rutherford to file a successive

§ 2255 motion, and dismiss the appeal.                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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