                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-7365



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DAMION NELSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, Magistrate
Judge. (7:06-cv-00329-jct)


Submitted:   December 20, 2006            Decided:   January 10, 2007


Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Damion Nelson, Appellant Pro Se. William Frederick Gould, OFFICE
OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Damion Nelson 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 Nelson has not made the

requisite    showing.     Accordingly,     we   deny    a   certificate   of

appealability and dismiss the appeal.

            Additionally, we construe Nelson’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).   Nelson’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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