                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6573


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

RICHARD ALLEN SMITH, JR., a/k/a/ Smitty,

                  Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Frederick P. Stamp, Jr.,
Senior District Judge. (2:00-cr-00007-FPS-JES-1)(2:04-cv-00050-
FPS)


Submitted:    September 29, 2009            Decided:   October 6, 2009


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Richard Allen Smith, Jr., Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

              Richard Allen Smith, Jr., 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.       2009)       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).       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 Smith has

not    made     the    requisite        showing.        Accordingly,            we    deny    a

certificate of appealability and dismiss the appeal.

              Additionally, we construe Smith’s notice of appeal and

informal brief as an application to file a second or successive

motion under 28 U.S.C.A. § 2255.                     United States v. Winestock,

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

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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)     (West    Supp.       2009).      Smith’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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