                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7327


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

THOMAS E. SMITH, JR., a/k/a Anthony Young,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:07-cv-01135-TSE; 1:03-cr-00245-TSE-1)


Submitted:    October 15, 2009              Decided:   October 22, 2009


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Thomas E. Smith, Jr., Appellant Pro Se. Benjamin L. Hatch,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Thomas E. 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.


       *
       The district court’s finding that Smith’s motion merely
reiterated the claims raised in his original § 2255 was
tantamount to a finding that the motion for reconsideration was
a successive motion.



                                              2
               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

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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