UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-7547

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRY W. STEWART,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:01-cr-00011-MOC-2; 3:08-cv-00436-MOC)

Submitted: November 2, 2012 Decided: November 6, 2012

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Terry W. Stewart, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Terry W. Stewart seeks to appeal the district court’s

order treating his Fed. R. Civ. P. 60(b) motion as a successive

(West Supp. 2012) 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)(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 Stewart has not made the requisite showing. Accordingly,

we deny a certificate of appealability and dismiss the appeal.

Additionally, we construe Stewart’s notice of appeal

and informal brief as an application to file a second or

2 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. 2012). Stewart’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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