                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-6255



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MERRITT AVERY JOHNSON,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (1:92-cr-00508-JCC; 1:96-cv-01300-AVB)


Submitted: August 31, 2006                 Decided: September 6, 2006


Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Merritt Avery Johnson, Appellant Pro Se.  Marcus John Davis,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Merritt   Avery   Johnson   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 Johnson has not

made the requisite showing.       Accordingly, we deny Johnson’s motion

for a certificate of appealability and dismiss the appeal.

             Additionally, we construe Johnson’s notice of appeal and

informal brief 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 prisoner must assert claims


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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).   Johnson’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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