                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-7266


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ROGER CHARLES DAY, JR.,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:07-cr-00154-JAG-3; 3:14-cv-00305-
JAG)


Submitted: December 18, 2018                                Decided: December 21, 2018


Before AGEE, THACKER, and HARRIS, Circuit Judges.


Dismissed in part and affirmed in part by unpublished per curiam opinion.


Roger Charles Day, Jr., Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

       Roger Charles Day, Jr., seeks to appeal the district court’s final orders dismissing

his combined 28 U.S.C. § 2255 (2012) and Fed. R. Civ. P. 60(b) motion as a successive

28 U.S.C. § 2255 motion, and dismissing it on that basis, and denying his Fed. R. Civ. P.

59(e) motion. The orders denying Day’s successive § 2255 motion and his Rule 59(e)

motion are not appealable unless a circuit justice or judge issues a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability (COA)

will not issue absent “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner

satisfies this standard by demonstrating that reasonable jurists would find that the district

court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel,

529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When

the district court denies relief on procedural grounds, the prisoner must demonstrate both

that the dispositive procedural ruling is debatable, and that the motion states a debatable

claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have

independently reviewed the record and conclude that Day has not made the requisite

showing. Accordingly, we deny a COA and dismiss in part the appeal.

       Insofar as Day appeals that part of the district court’s order construing his Rule

60(b) motion as a successive § 2255 motion, we deny the COA as unnecessary and

affirm. See Harbison v. Bell, 556 U.S. 180 (2009); United States v. McRae, 793 F.3d

392, 400 (4th Cir. 2015).



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      Additionally, we construe Day’s notice of appeal and informal brief as an

application to file a second or successive § 2255 motion. 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 that . . . would be sufficient to establish by
       clear and convincing evidence that no reasonable factfinder would have
       found the movant guilty of the offense; or
       (2) a new rule of constitutional law, made retroactive to cases on collateral
       review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). Day’s claims do not satisfy either of these criteria. Therefore, we

deny authorization to file a successive § 2255 motion.

       Accordingly, we deny a COA and dismiss in part and affirm in part the appeal.

We dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

                                            DISMISSED IN PART, AFFIRMED IN PART




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