119 FAPPX 551 - United States v. Lyons

                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-7637



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


COREY JOSEPH LYONS,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CR-98-29)


Submitted:   January 5, 2005                 Decided:   January 21, 2005


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Corey Joseph Lyons, Appellant Pro Se. Robert H. McWilliams, Jr.,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Corey Joseph Lyons seeks to appeal the district court’s

order denying relief on his motion filed pursuant to Fed. R. Civ.

P. 60(b).     Because Lyons’ motion did not assert a defect in the

collateral review process itself, but rather directly attacked his

conviction and sentence, it did not constitute a true Rule 60(b)

motion under our decision in United States v. Winestock,

340 F.3d 200, 207

 (4th Cir.), cert. denied,

540 U.S. 995

 (2003).             To appeal

an order denying a Rule 60(b) motion in a habeas action, Lyons must

establish entitlement to a certificate of appealability.             See Reid

v. Angelone,

369 F.3d 363, 368

 (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   his

constitutional    claims   are   debatable   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

 (2003);

Slack v. McDaniel,

529 U.S. 473, 484

 (2000); Rose v. Lee,

252 F.3d 676, 683

 (4th Cir. 2001).         We have independently reviewed the

record and conclude that Lyons has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.




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             To the extent Lyons’ notice of appeal and informal brief

could   be   construed   as   a   motion    for   authorization   to   file   a

successive § 2255 motion, we deny such authorization.             Winestock,

340 F.3d at 208

.    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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