                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-7802


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LORENZO BUTTS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:00-cr-00067-JBF-1)


Submitted:   February 18, 2010            Decided:   February 24, 2010


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Lorenzo Butts, Jr., Appellant Pro Se. Kevin Michael Comstock,
Joseph Evan DePadilla, Assistant United States Attorneys,
Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lorenzo         Butts,       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.    2009)    motion,    and

dismissing it on that basis, and denying his motion for recusal.

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    Butts      has     not        made   the     requisite      showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.        We deny the Government’s motion to consolidate with

Appeal No. 09-7803.

            Additionally, we construe Butts’s notice of appeal and

informal brief as an application to file a second or successive

                                                 2
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)         (West    Supp.       2009).         Butts’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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