                            ON REHEARING

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6009



PAUL D. BAKER,

                                              Petitioner - Appellant,

          versus


COMMONWEALTH OF VIRGINIA,

                                               Respondent - Appellee.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-04-456-7-JCT)


Submitted:   December 20, 2006             Decided:   January 25, 2007


Before KING, GREGORY, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Paul D. Baker, Appellant Pro Se. John H. McLees, Jr., OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Paul D. Baker seeks to appeal the district court’s order

treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.

§ 2254 (2000) petition, 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) (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 Baker has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.




      *
      We previously dismissed Baker’s appeal because it was
untimely. Baker filed a petition for rehearing and rehearing en
banc, arguing he did not receive notice of the district court order
until 118 days after it was entered. The Commonwealth of Virginia
stated it had no objection if this court chose to accept the notice
of appeal as a motion to reopen and grant Baker’s rehearing
petition. We thereupon granted panel rehearing.

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            Additionally, we construe Baker’s notice of appeal and

informal brief as an application to file a second or successive

petition under 28 U.S.C. § 2254.          United States v. Winestock, 340

F.3d 200, 208 (4th Cir. 2003).        In order to obtain authorization to

file a successive § 2254 petition, 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

petitioner guilty of the offense.         28 U.S.C. § 2244(b)(2) (2000).

Baker’s claims do not satisfy either of these criteria. Therefore,

although we grant Baker’s motion to present newly discovered

evidence, we deny his motions for the appointment of counsel and an

evidentiary hearing, and deny authorization to file a successive

§ 2254 petition.

            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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