                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6900



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ANTHONY MAURICE LYNCH,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Frederick P. Stamp, Jr.,
District Judge. (CR-00-7; CA-03-61-2)


Submitted:   October 28, 2005          Decided:     November 15, 2005


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


Dismissed by unpublished per curiam opinion.


Anthony Maurice Lynch, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Anthony   Maurice   Lynch     seeks    to   appeal   the    district

court’s orders accepting the recommendation of the magistrate judge

and denying relief on his 28 U.S.C. § 2255 motion, dismissing as

successive his Fed. R. Civ. P. 60(b) motion for reconsideration of

the court’s order denying relief on his 28 U.S.C. § 2255 (2000)

motion, and denying as moot his motion to amend his Rule 60(b)

motion.*   The orders are 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 both that the

district    court’s   assessment    of    his     constitutional   claims     is

debatable or wrong and that any dispositive procedural rulings by

the district court are also debatable or wrong.                  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).


     *
      Because Lynch’s Rule 60(b) motion to set aside the denial of
his § 2255 motion was not filed within ten days of the district
court’s judgment as required by Fed. R. Civ. P. 59(e), the time for
appealing that order expired before he filed his notice of appeal
on May 23, 2005, and only the denial of his Rule 60(b) motion and
motion to amend was preserved for appeal.       See Alston v. MCI
Communications Corp., 84 F.3d 705, 706 (4th Cir. 1996) (only a
timely Rule 59(e) motion tolls time period for filing notice of
appeal); Fed. R. App. P. 4(a)(4)(A)(iv)-(vi).

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We have independently reviewed the record and conclude that Lynch

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

certificate of appealability and dismiss the appeal.

            Additionally, we construe Lynch’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

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).     Lynch’s claims do not satisfy either of these criteria.

See In re Vial, 115 F.3d 1192, 1198 (4th Cir. 1997) (en banc)

(holding that “‘newly discovered evidence’ exception to the bar on

second and successive § 2255 proceedings . . . applies only to

challenges to the underlying conviction; it is not available to

assert sentencing error.”).          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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