UNITED STATES of America, Plaintiff-Appellee, v. Barkley GARDNER, a/k/a Big Black, Defendant-Appellant, 317 F. App'x 368

Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Barkley Gardner seeks to appeal the district court’s order denying his Fed. R.Civ.P. 60(

b) motion. Because the motion attacked Gardner’s convictions, it was a successive 28 U.S.C.A. § 2255 (West Supp.2008) motion, and the district court did not have authorization to consider the motion. The court’s order is not appeal-able unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). 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) (2006).

A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the .constitutional claims by the district court is debatable or wrong and that any disposi-tive procedural ruling by the district court is likewise debatable. 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 Gardner has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Gardner’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003).

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 cases on collateral review; or (2) 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 factfin-der would have found the movant guilty of the offense. 28 U.S.C.A. §§ 2244(b)(2), 2255 (West 2006 & Supp.2008).

Gardner’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.