UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7182

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EUGENE KENNY SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (CR-96-54; CA-99-136-1)

Submitted: December 22, 2005 Decided: December 30, 2005

Before WIDENER, NIEMEYER, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Eugene Kenny Smith, 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Unpublished opinions are not binding precedent in this circuit.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:

Eugene Kenny Smith seeks to appeal the district court’s

order construing his Fed. R. Civ. P. 60(b) motion as an

unauthorized successive motion filed under

(2000),

and dismissing for lack of jurisdiction. An appeal may not be

taken from the final order in a § 2255 proceeding 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 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 Smith has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.

We also construe Smith’s notice of appeal and informal

brief as an application to file a second or successive motion under

(2000). See United States v. Winestock,

(4th Cir. 2003). In order to obtain authorization to file

- 2 - a successive § 2255 motion, a movant 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 factfinder would have found petitioner

guilty of the offense.

¶ 8. Smith’s claims do

not satisfy either of these standards. We therefore decline to

authorize 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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