                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 12-7547


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERRY W. STEWART,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:01-cr-00011-MOC-2; 3:08-cv-00436-MOC)


Submitted:   November 2, 2012              Decided:   November 6, 2012


Before WILKINSON, KEENAN, and THACKER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Terry W. Stewart, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

            Terry W. Stewart 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. 2012) 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)(B) (2006).                   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 Stewart has not made the requisite showing.                         Accordingly,

we deny a certificate of appealability and dismiss the appeal.

            Additionally, we construe Stewart’s notice of appeal

and    informal    brief    as     an   application       to     file    a    second   or

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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. 2012).                   Stewart’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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