124 FAPPX 792 - United States v. Sutton

                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-7970



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


QUINTON LEON SUTTON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.   Frank W. Bullock, Jr.,
District Judge. (CR-98-355; CA-04-933-1)


Submitted:   March 24, 2005                 Decided:   March 30, 2005


Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Quinton Leon Sutton, Appellant Pro Se.     Sandra Jane Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Quinton Leon Sutton, a federal prisoner, seeks to appeal

the   district     court’s     order     adopting    the      magistrate      judge’s

recommendation and denying relief on Sutton’s Fed. R. Civ. P. 15(c)

and 60(b) motion that the court construed as a

28 U.S.C. § 2255


(2000) motion.         An appeal may not be taken from the district

court’s    order      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 for claims addressed by

a district court 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   both    that   the    district    court’s     assessment       of    his

constitutional     claims      is    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

 (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 Sutton has not made the requisite showing.

Accordingly,     we    deny    Sutton’s     motion      for    a    certificate      of

appealability and dismiss the appeal.

            Additionally, we construe Sutton’s notice of appeal and

informal brief on appeal as an application to file a second or

successive § 2255 motion. See United States v. Winestock, 340 F.3d


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200, 208 (4th Cir.), cert. denied,

540 U.S. 995

 (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 sufficient to establish that no reasonable fact

finder    would   have   found      the    movant   guilty.

28 U.S.C. §§ 2244

(B)(3)(C), 2255 (2000).            Sutton’s claim does not satisfy

either of these conditions.         Therefore, we decline to authorize

Sutton 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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