                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-7854


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

          v.

DEAN CURTIS SAWYER,

                      Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Rebecca Beach Smith, Chief
District Judge. (2:07-cr-00125-RBS-TEM-5; 2:09-cv-00634-RBS)


Submitted:   December 13, 2012            Decided:   December 19, 2012


Before MOTZ, WYNN, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Dean Curtis Sawyer, Appellant Pro Se. Laura Pellatiro Tayman,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Dean      Curtis       Sawyer    seeks       to     appeal          the     district

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

successive      28   U.S.C.A.      § 2255        (West    Supp.         2012)       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)(B) (2006).                         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 motion 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 Sawyer has not made the requisite showing.                            Accordingly, we

deny a certificate of appealability and dismiss the appeal.

            Additionally,          we    construe    Sawyer’s            notice       of   appeal

and    informal      brief    as    an    application          to       file    a     second    or

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successive § 2255 motion.              United States v. 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. 2012).                   Sawyer’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   this       court   and     argument     would    not    aid       the    decisional

process.



                                                                                   DISMISSED




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