                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-6528



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JAMES THURMAN DAUGHTIE,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:04-cr-00006-F; 7:06-cv-00127-F)


Submitted:   October 3, 2007              Decided:   November 13, 2007


Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


James Thurman Daughtie, Appellant Pro Se. Banumathi Rangarajan,
Assistant United States Attorney, Richard Ernest Myers, II, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             James Thurman Daughtie, a federal prisoner, seeks to

appeal the district court’s orders denying his 28 U.S.C. § 2255

(2000)     motion,    denying      his    motion    for     a     certificate    of

appealability, and denying his Fed. R. Civ. P. 60(b) motion for

reconsideration.      Daughtie’s February 16, 2007 notice of appeal is

untimely as to the district court’s September 26, 2006 order

denying § 2255 relief.        Therefore, we are without jurisdiction to

review     that   order.*     We    conclude,      however,      that   Daughtie’s

preliminary informal brief amounts to a timely notice of appeal as

to   the   court’s   denial   of    a    certificate   of       appealability   and

Daughtie’s Rule 60(b) motion.              Though we have jurisdiction to

review that order, we deny Daughtie’s motion for a certificate of

appealability and dismiss the appeal.

             An appeal may not be taken from the final order in a

post-conviction proceeding unless a circuit justice or judge issues


      *
      Under Fed. R. App. P. 4(a)(1)(B), Daughtie was required to
file his notice of appeal of the September 26, 2006 order denying
§ 2255 relief within sixty days, unless the court extended the
appeal period under Fed. R. App. P. 4(a)(5), or reopened the appeal
period under Fed. R. App. P. 4(a)(6). Daughtie did not move to
extend the appeal period within thirty days of the expiration of
the original appeal period as required by Fed. R. App. P.
4(a)(5)(A). Nor did he move to reopen the appeal period under Rule
4(a)(6) within seven days of November 3, 2006, when he states he
received the court’s final order.     Despite Daughtie’s assertion
that he was in lockdown status for much of the time following his
receipt of the district court’s order, the time accorded Daughtie
to file a notice of appeal or move to extend the appeal period is
jurisdictional. See Bowles v. Russell,        U.S.    , 127 S. Ct.
2360 (2007).

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a certificate of appealability.           28 U.S.C. § 2253(c)(1) (2000).         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 Daughtie has

not made the requisite showing.            It is apparent from the record

that Daughtie’s Rule 60(b) motion was, in reality, an attempt to

file a successive 28 U.S.C. § 2255 (2000) motion.             Accordingly, we

deny Daughtie’s motion for a certificate of appealability as to the

denial of his Rule 60(b) motion and dismiss the appeal.

             In addition, we construe Daughtie’s notice of appeal and

informal brief on appeal as an application for authorization to

file a successive § 2255 motion.           See United States v. Winestock,

340   F.3d    200,    208   (4th   Cir.    2003).    In     order    to   obtain

authorization to file a second § 2255 motion, a prisoner must

assert claims 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


                                     - 3 -
sufficient to establish that no reasonable fact finder would have

found the petitioner guilty.    28 U.S.C. § 2244(b)(3)(C) (2000).

Because Daughtie asserts neither a new rule of constitutional law

made retroactively applicable nor newly discovered evidence, we

conclude that he has not demonstrated grounds on which to grant

authorization under § 2244.

          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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