                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-7549


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DONALD MILTON BOYSAW,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.    Samuel G. Wilson, District
Judge. (7:03-cr-00128-sgw-mfu-1; 7:10-cv-80268-sgw-mfu)


Submitted:   January 13, 2011             Decided:   January 21, 2011


Before MOTZ, KING, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Donald Milton Boysaw, Appellant Pro Se. Ronald Andrew Bassford,
Assistant  United   States  Attorney,  Roanoke,  Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Donald    Milton        Boysaw       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.       2010)    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) (2006); 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).       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

Boysaw has not made the requisite showing.                          Accordingly, we deny

a certificate of appealability and dismiss the appeal.



                                               2
             Additionally,           we    construe       Boysaw’s      notice         of    appeal

and   informal       brief     as     an     application         to   file       a     second    or

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).          Boysaw’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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