                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-7411



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DOMINGO NOLBERTO PENA,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:98-cr-00132-JCC; 1:00-cv-01693)


Submitted:   December 20, 2007         Decided:     December 28, 2007


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


Dismissed by unpublished per curiam opinion.


Domingo Nolberto Pena, Appellant Pro Se. James L. Trump, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Domingo    Nolberto   Pena   seeks     to    appeal     the    district

court’s order treating his Fed. R. Civ. P. 60(b)(4) motion as a

successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on

that   basis,   and   a   subsequent    order   denying      his    motion      for

reconsideration.      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        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 Pena has not

made the requisite showing.      Accordingly, we deny a certificate of

appealability and dismiss the appeal.

           Additionally, we construe Pena’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


                                  - 2 -
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).     Pena’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




                                     - 3 -
