326 FAPPX 161 - United States v. Wall

                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6146


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

RODNEY EDWARD     WALL,   a/k/a   Sld   Dft   3:99-24-9,   a/k/a   Big
Rodney,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:99-cr-00024-FDW-9)


Submitted:    May 21, 2009                        Decided:   May 29, 2009


Before MOTZ, TRAXLER, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Rodney Edward Wall, Appellant Pro Se.     Douglas Scott Broyles,
Assistant United States Attorney, Charlotte, North Carolina, Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Rodney       Edward        Wall       seeks        to    appeal       the        district

court’s order denying his Fed. R. Civ. P. 60(b) motion seeking

reconsideration          of    his

28 U.S.C.A. § 2255

       (West    Supp.        2008)

motion.     The order is not appealable 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 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       Wall       has     not    made     the       requisite

showing.         Accordingly, we deny a certificate of appealability

and dismiss the appeal.

             Additionally, we construe Wall’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 F.3d 200, 208

       (4th        Cir.       2003).         In    order        to     obtain

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authorization to file a successive § 2255 motion, a prisoner

must     assert       claims     based   on    either:        (1) 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; or

(2) a new rule of constitutional law, previously unavailable,

made retroactive by the Supreme Court to cases on collateral

review.

28 U.S.C.A. § 2255

(h) (West Supp. 2008).                 Wall’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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