                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-6952


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

RICHARD A. ORR,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.        James P. Jones,
District Judge. (2:00-cr-10067-jpj-mfu; 2:10-cv-80269-jpj-mfu)


Submitted:   September 30, 2010             Decided:   October 12, 2010


Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Richard A. Orr, Appellant Pro Se.           Steven Randall Ramseyer,
Assistant United States Attorney,           Abingdon, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Richard A. Orr 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        Orr   has         not        made     the    requisite        showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.



                                                    2
            Additionally, we construe Orr’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) (West Supp. 2010).               Orr’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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