UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7562

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GREGORY ROLAND PRUESS,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (CR-99-48; CA-01-149-5)

Submitted: January 27, 2005 Decided: February 4, 2005

Before LUTTIG and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Gregory Roland Pruess, Appellant Pro Se. C. Nick Williams, Jennifer Marie Hoefling, Assistant United States Attorneys, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Gregory Roland Pruess, a federal prisoner, seeks to

appeal the district court’s order construing his motion filed

under Fed. R. Civ. P. 60(b), as a second or successive motion under

(2000), and dismissing it for lack of

jurisdiction. The order is not appealable unless a circuit justice

or judge issues a certificate of appealability.

(c)(1) (2000); see Reid v. Angelone,

,

374 n.7 (4th Cir. 2004). A certificate of appealability will not

issue absent “a substantial showing of the denial of a

constitutional right.”

(c)(2) (2000). A prisoner

satisfies this standard by demonstrating that reasonable jurists

would find that his constitutional claims are debatable and that

any dispositive procedural rulings by the district court also are

debatable or wrong. See Miller-El v. Cockrell,

, 336-

38 (2003); Slack v. McDaniel,

(2000); Rose v.

Lee,

(4th Cir. 2001). We have independently

reviewed the record and conclude that Pruess has not made the

requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal.

Additionally, we construe Pruess’ notice of appeal and

informal brief on appeal as an application to file a second or

successive § 2255 motion. See United States v. Winestock,

(4th Cir.), cert. denied,

(2003). In order

- 2 - to obtain authorization to file a successive § 2255 motion, 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 that would be sufficient to establish by clear

and convincing evidence that no reasonable factfinder would have

found the movant guilty of the offense.

(b)

(2000);

¶ 8. Pruess’ claims do not satisfy either

of these conditions. Therefore, we decline authorization to Pruess

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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