                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-6395



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


ROBERT EARL MARSHALL,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:99-cr-00037-RLW; 3:01-cv-00129-RLW; 3:03-cv-
00844-RLW; 3:08-cv-00103-RLW)


Submitted:     June 19, 2008                 Decided:   June 25, 2008


Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Robert Earl Marshall, Appellant Pro Se. Stephen Wiley Miller, S.
David Schiller, Michael Cornell Wallace, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Robert Earl Marshall seeks to appeal the district court’s

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

U.S.C. § 2255 (2000) 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) (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 Marshall has not made the requisite

showing.     Accordingly, we deny his motion for a certificate of

appealability and dismiss the appeal.

            Additionally, we construe Marshall’s notice of appeal and

motion for a certificate of appealability as an application to file

a second or successive motion under 28 U.S.C. § 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


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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, 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.             28

U.S.C. §§ 2244(b)(2), 2255 (2000).            Marshall’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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