                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 03-7624



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CLEVELAND NELSON,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Fayetteville. Malcolm J. Howard,
District Judge. (CR-94-57)


Submitted:   April 21, 2004                  Decided:   May 28, 2004


Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.


Vacated and remanded in part; authorization denied in part by
unpublished per curiam opinion.


Cleveland Nelson, Appellant Pro Se. Jane J. Jackson, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Cleveland    Nelson,      a    federal     prisoner,   appeals    the

district court’s order denying his motion for reconsideration of

its order denying relief on his motion filed under 28 U.S.C. § 2255

(2000).   Because Nelson’s motion, styled as a Fed. R. Civ. P. 60(b)

motion, directly attacked his conviction and sentence rather than

any alleged defect in the collateral review process, it amounted to

a   successive   §   2255   motion       that   the   district    court   lacked

jurisdiction to consider. See United States v. Winestock, 340 F.3d

200, 207 (4th Cir.), cert. denied 124 S. Ct. 496 (2003).                      We

accordingly vacate the order denying the Rule 60(b) motion and

remand to the district court with instructions to dismiss the

motion.

           In accordance with Winestock, we construe Nelson’s notice

of appeal and informal brief on appeal as an application to file a

successive § 2255 motion.         See id. at 208.         In order to obtain

authorization to file a successive § 2255 motion, a movant 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

sufficient to establish that no reasonable factfinder would have

found the movant guilty.          See 28 U.S.C. § 2244(b)(2) (2000).

Nelson does not satisfy either of these conditions.               Accordingly,




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we deny Nelson’s implicit application for leave to file a second

§ 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.



                                      VACATED AND REMANDED IN PART;
                                       AUTHORIZATION DENIED IN PART




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