UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7512

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES ADOLPH BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (7:07-cr-00042-FL-8; 7:09-cv-00043-FL)

Submitted: January 13, 2011 Decided: January 21, 2011

Before MOTZ, KING, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James Adolph Brown, Appellant Pro Se. Jennifer P. May-Parker, Rudolf A. Renfer, Jr., Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

James Adolph Brown seeks to appeal the district

court’s order treating his Fed. R. Civ. P. 60(b) motion as a

successive

(West Supp. 2010) motion, and

dismissing it on that basis. The order is 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). When the district court denies relief on the merits, a

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that the district court’s

assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel,

(2000); see Miller-El v.

Cockrell,

(2003). When the district court

denies relief on procedural grounds, the prisoner must

demonstrate both that the dispositive procedural ruling is

debatable, and that the motion states a debatable claim of the

denial of a constitutional right. Slack,

.

We have independently reviewed the record and conclude that

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

a certificate of appealability and dismiss the appeal.

2 Additionally, we construe Brown’s notice of appeal and

informal brief as an application to file a second or successive

§ 2255 motion. United States v. 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. 2010). Brown’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

3