                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-8201


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOEL ANDREW BAYAN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Rebecca Beach Smith,
District Judge. (4:08-cr-00128-RBS-JEB-1)


Submitted:   February 25, 2010            Decided:   March 5, 2010


Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Joel Andrew Bayan, Appellant Pro Se. Lisa Rae McKeel, Assistant
United States Attorney, Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Joel Andrew Bayan seeks to appeal the district court’s

order    treating       his    “supplemental            brief”       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       Bayan       has     not    made    the    requisite

showing.        Accordingly, we deny a certificate of appealability

and dismiss the appeal.

              Additionally, we construe Bayan’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

                                                  2
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).      Bayan’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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