                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-7512


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES ADOLPH BROWN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.    Louise W. Flanagan,
Chief District Judge. (7:07-cr-00042-FL-8; 7:09-cv-00043-FL)


Submitted:   January 13, 2011             Decided:   January 21, 2011


Before MOTZ, KING, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


James Adolph Brown, Appellant Pro Se. Jennifer P. May-Parker,
Rudolf A. Renfer, Jr., Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              James     Adolph     Brown     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.         2010)    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).       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

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

a certificate of appealability and dismiss the appeal.



                                            2
            Additionally, we construe Brown’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,             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.      2010).         Brown’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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