UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6970

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARVIN HAROLD WITHERSPOON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cv-00021-RLV; 5:04-cr-00005-RLV- DCK-1)

Submitted: October 29, 2009 Decided: November 24, 2009

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

Dismissed by unpublished per curiam opinion.

Marvin Harold Witherspoon, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Marvin Harold Witherspoon seeks to appeal the district

court’s orders treating his Fed. R. Civ. P. 60(b) motions as

successive

(West Supp. 2009) motions, and

dismissing them on that basis and denying his motion to alter or

amend the judgment. The orders are not appealable unless a

circuit justice or judge issues a certificate of appealability.

(c)(1) (2006); Reid v. Angelone,

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

issue absent “a substantial showing of the denial of a

constitutional right.”

(c)(2) (2006). A

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that any assessment of the

constitutional claims by the district court is debatable or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable. Miller-El v. Cockrell,

(2003); Slack v. McDaniel,

(2000);

Rose v. Lee,

(4th Cir. 2001). We have

independently reviewed the record and conclude that Witherspoon

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

certificate of appealability and dismiss the appeal.

Additionally, we construe Witherspoon’s notice of

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

successive motion under

. United States v.

2 Winestock,

(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.

(h) (West Supp. 2009).

Witherspoon’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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