                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6135


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

EMMETT MADISON GRAHAM, JR.,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:97-cr-00098-F-1)


Submitted:    May 28, 2009                       Decided:   July 7, 2009


Before MOTZ and      KING,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Emmett Madison Graham, Jr., Appellant Pro Se. Michael Gordon
James,   Assistant  United States  Attorney, Raleigh,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Emmett      Madison       Graham,     Jr.,     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. 2008) 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).       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 Graham has

not made the requisite showing.                    Accordingly, we deny Graham’s

motion    for      a    certificate      of     appealability          and    dismiss      the

appeal.       We       further   deny    Graham’s     motions          for    bail   and    to

schedule a bail hearing and deny as moot Graham’s motion to

expedite review of the motion for bail or the merits of the

appeal.

                                               2
            Additionally,        we     construe        Graham’s    notice      of    appeal

and   informal      brief   as     an    application         to    file    a    second     or

successive motion under 28 U.S.C.A. § 2255.                         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).                 Graham’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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