The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EMANUEL BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley, Jr.,
District Judge. (2:90-cr-00240; 1:07-cv-00195-NCT)
Submitted: March 25, 2008 Decided: March 27, 2008
Before MOTZ, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Emanuel Brown, Appellant Pro Se. Angela Hewlett Miller, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Emanuel Brown seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge treating his
Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. § 2255
(2000) motion and dismissing it on that basis. The order is not
appealable unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000); 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) (2000). 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 dispositive
procedural ruling by the district court is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-
84 (4th Cir. 2001). We have independently reviewed the record and
conclude that Brown has not made the requisite showing.
Accordingly, although we grant Brown’s motion to amend his informal
brief, we deny a certificate of appealability and dismiss the
appeal.
Additionally, we construe Brown’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. United States v. Winestock, 340
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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 factfinder would have found the
movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Brown’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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