                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 09-6970


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MARVIN HAROLD WITHERSPOON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.          Richard L.
Voorhees, District Judge. (5:07-cv-00021-RLV; 5:04-cr-00005-RLV-
DCK-1)


Submitted:    October 29, 2009               Decided:   November 24, 2009


Before MOTZ and      SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Marvin Harold Witherspoon, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Marvin Harold Witherspoon seeks to appeal the district

court’s orders treating his Fed. R. Civ. P. 60(b) motions as

successive 28 U.S.C.A. § 2255 (West Supp. 2009) motions, and

dismissing them on that basis and denying his motion to alter or

amend the judgment.         The orders are 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 Witherspoon

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

certificate of appealability and dismiss the appeal.

           Additionally,     we        construe     Witherspoon’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.

                                         2
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).

Witherspoon’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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