                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-8168


MICHAEL ISIAH LAWRENCE,

                  Petitioner – Appellant,

             v.

COMMONWEALTH OF VIRGINIA,

                  Respondent – Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       James C. Turk, Senior
District Judge. (7:09-cv-00459-jct-mfu)


Submitted:    January 6, 2010                 Decided:   January 25, 2010


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Michael Isiah Lawrence, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

              Michael Isiah Lawrence seeks to appeal the district

court’s       order    treating        his     motion     for        post-conviction            DNA

testing as a successive 28 U.S.C. § 2254 (2006) petition, 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) (2006); Jones v. Braxton,

392 F.3d 683, 687 (4th Cir. 2004); 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)          (2006).            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 Lawrence has

not    made     the    requisite        showing.          Accordingly,              we   deny      a

certificate of appealability and dismiss the appeal.

              Additionally, we construe Lawrence’s notice of appeal

and    informal       brief    as     an     application        to       file   a    second        or

successive petition under 28 U.S.C. § 2254.                               United States v.

                                               2
Winestock, 340 F.3d 200, 208 (4th Cir. 2003).                       In order to

obtain authorization to file a successive § 2254 petition, 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,     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 petitioner guilty of

the offense.     28 U.S.C. § 2244(b)(2) (2006).               Lawrence’s claims

do not satisfy either of these criteria.                    Therefore, we deny

authorization to file a successive § 2254 petition.

            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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