UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7401

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EUGENE ROBERT RICE,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (CR-99-513; CA-03-2881)

Submitted: February 11, 2005 Decided: March 1, 2005

Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Eugene Robert Rice, Appellant Pro Se. Lynne Ann Battaglia, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Eugene Robert Rice, a federal prisoner, seeks to appeal

the district court’s order denying relief on his

(2000) motion to vacate his conviction and sentence, and the

court’s subsequent denial of his motion to reconsider, pursuant to

Fed. R. Civ. P. 60(b). An appeal may not be taken from the final

order in a habeas proceeding unless a circuit justice or judge

issues a certificate of appealability.

(c)(1)

(2000); Reid v. Angelone,

(4th Cir. 2004)

(applying the COA requirement to appellate review of the denial of

a Rule 60(b) motion). A certificate of appealability will not

issue for claims addressed by a district court 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 both that his

constitutional claims are debatable and that any dispositive

procedural rulings by the district court are also debatable or

wrong. See Miller-El v. Cockrell,

(2003);

Slack v. McDaniel,

(2000); Rose v. Lee,

(4th Cir. 2001). We have independently reviewed the

record and conclude that Rice has not made the requisite showing.

- 2 - Accordingly, we deny a certificate of appealability and dismiss the

appeal.*

Additionally, we construe Rice’s notice of appeal and

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

successive § 2255 motion. See Winestock, 340 F.3d at 208. In

order 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 sufficient to establish that no reasonable fact

finder would have found the movant guilty.

(b)(3)(C), 2255 (2000). Rice’s claims do not satisfy either

of these conditions. Therefore, we decline to grant Rice

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

* Regarding the order denying Rice’s Rule 60(b) motion, we find that the court should have dismissed the motion for lack of jurisdiction as a successive motion. See United States v. Winestock,

(4th Cir.), cert. denied,

(2003). Nonetheless, the order is not appealable because Rice cannot establish entitlement to a certificate of appealability. See Reid,

.

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