UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7006

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KAREEM TOMLIN,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (CR-92-238-V; CA-01-150-3-V)

Submitted: October 20, 2005 Decided: October 28, 2005

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Kareem Tomlin, Appellant Pro Se. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kareem Tomlin, a federal prisoner, seeks to appeal the

district court’s order denying relief on his motion, filed under

Rule 60(b) of the Federal Rules of Civil Procedure, in which Tomlin

challenged his 1993 conviction. An appeal may not be taken from

the district court’s order unless a circuit justice or judge issues

a certificate of appealability.

(c)(1) (2000). 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 the district court’s assessment of his

constitutional claims is 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 Tomlin has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.

Additionally, we construe Tomlin’s 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 sufficient to establish that no reasonable fact

finder would have found the movant guilty.

(b)(3)(C), 2255 (2000). Tomlin’s claim does not satisfy

either of these conditions. Therefore, we decline to authorize

Tomlin 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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