                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-7388


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DOMINGO NOLBERTO PENA,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:98-cr-00132-JCC-11; 1:00-cv-01693).


Submitted:   January 18, 2011             Decided:   January 27, 2011


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Domingo Nolberto Pena, Appellant Pro Se. Morris Rudolph Parker,
Jr., James L. Trump, Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Domingo    Nolberto      Pena    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.       2010)    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) (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 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 Pena

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

certificate of appealability and dismiss the appeal.



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            Additionally, we construe Pena’s notice of appeal and

informal brief as an application to file a second or 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.      2010).       Pena’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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