UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 11-6992

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

FRANCISZEK PIOTR CETERA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:02-cr-00002-BO-1; 7:11-cv-00108-BO)

Submitted: November 15, 2011 Decided: November 18, 2011

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

Dismissed by unpublished per curiam opinion.

Franciszek Piotr Cetera, Appellant Pro Se. Ethan A. Ontjes, Assistant United States Attorney, Michael Gordon James, Tobin Webb Lathan, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Franciszek Piotr Cetera seeks to appeal the district

court’s order dismissing his

(West Supp.

2011) motion as successive. The order is not appealable unless

a circuit justice or judge issues a certificate of

appealability.

(c)(1)(B) (2006). 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

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

a certificate of appealability and dismiss the appeal.

Additionally, we construe Cetera’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, that “would be

sufficient to establish by clear and convincing evidence that 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)(1)-(2) (West Supp.

2011). Cetera’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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