Derek Marquis FLEMING, Petitioner-Appellant, v. Vanessa P. ADAMS, Warden, FCC Petersburg, Respondent-Appellee, 138 F. App'x 527

PER CURIAM: Derek Marquis Fleming, a federal prisoner, seeks to appeal the district court’s order construing his motion filed under Fed.R.Civ.P. 60(

b) as a successive motion under 28 U.S.C. § 2255 (2000), and dismissing it for lack of jurisdiction, and the court’s orders denying his motions for reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).

A prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of his constitutional claims is debatable or wrong and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Fleming has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal. In accordance with United States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied, 540 U.S. 995, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003), we construe Fleming’s notice of appeal and informal brief on appeal as an application to file a second or successive § 2255 motion.

In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to eases on collateral review; or (2) 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. 28 U.S.C. §§ 2244(b)(2), 2255 118 (2000). Fleming’s claims do not satisfy either of these conditions. Therefore, we decline to authorize Fleming 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