UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-7400

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DOUGLAS HAYTH BREWBAKER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (7:00-cr-00077-BR-1; 7:12-cv-00044-BR)

Submitted: February 21, 2013 Decided: February 25, 2013

Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Douglas Hayth Brewbaker, Appellant Pro Se. Banumathi Rangarajan, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Douglas Hayth Brewbaker seeks to appeal the district

court’s order dismissing his

(West Supp.

2012) motion as successive and without authorization from this

court. 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 Brewbaker has not made the requisite showing. Accordingly,

we deny a certificate of appealability and dismiss the appeal.

Additionally, we construe Brewbaker’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). Brewbaker’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 this court and argument would not aid the decisional

process.

DISMISSED

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