                              UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 06-6544



MICHAEL MCEVILY,

                                             Petitioner - Appellant,

            versus


GENE M. JOHNSON,

                                              Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (2:03-cv-00135-HCM)


Submitted: July 20, 2006                          Decided: July 27, 2006


Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed    by unpublished per curiam opinion.


Michael McEvily, Appellant Pro Se. Stephen R. McCullough, Assistant
Attorney General, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Michael McEvily seeks to appeal the district court’s

order treating his Fed. R. Civ. P. 60(b) motion as a successive 28

U.S.C. § 2254 (2000) 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)

(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 McEvily has not

made the requisite showing.     Accordingly, we deny a certificate of

appealability and dismiss the appeal.

           Additionally, we construe McEvily’s notice of appeal and

informal brief as an application to file a second or successive

petition under 28 U.S.C. § 2254.     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


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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

petitioner guilty of the offense.         28 U.S.C. § 2244(b)(2) (2000).

McEvily’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




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