                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-6660


CHARLES JERALL SMITH,

                  Petitioner - Appellant,

             v.

GENE M. JOHNSON,

                  Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:05-cv-00196-MHL)


Submitted:    August 21, 2009              Decided:   September 11, 2009


Before MOTZ, KING, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Charles Jerall Smith, Appellant Pro Se.   Karen Geneva Misbach,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Charles Jerall Smith seeks to appeal the magistrate

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

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).                      A prisoner satisfies

this       standard      by   demonstrating          that     reasonable       jurists      would

find       the    district      court’s        assessment       of     the     constitutional

claims,       and       any   dispositive       procedural           ruling,    debatable      or

wrong.           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,     683-85     (4th    Cir.      2001).         We     have     independently

reviewed          the    record     and       conclude      Smith      has     not   made    the

requisite         showing.          Accordingly,         we    deny     a     certificate      of

appealability and dismiss the appeal.

                 Additionally, we construe Smith’s notice of appeal and

informal brief as an application to file a second or successive


       *
       The parties consented to have the case decided by                                        a
magistrate judge in accordance with 28 U.S.C. § 636(c) (2006).



                                                 2
petition     under     28     U.S.C.     §    2244   (2006).        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     that      was   previously      unavailable         and   made

retroactive by the Supreme Court to cases on collateral review;

or   (2)    newly      discovered        evidence      that       was    not     previously

discoverable by due diligence and 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).     Smith’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
