UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-6224

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SAMMIE LEE BROWN, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief

District Judge. (CR-99-489; CA-02-4167-3-17)

Submitted: April 22, 2005 Decided: May 12, 2005

Before WILKINSON, MOTZ, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Sammie Lee Brown, Jr., Appellant Pro Se. Nancy Chastain Wicker,

OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

Sammie Lee Brown, Jr., seeks to appeal the district

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

district court construed as a successive 28 U.S.C. § 2255 (2000)

motion. Brown argues that the district court erred in failing to

give him notice of its intent to recharacterize the Rule 60(b)

motion as a § 2255 motion. See Castro v. United States, 540 U.S.

375, 383 (2003) (district court must give prisoner notice and

opportunity to respond before construing mislabeled post-conviction

motion as an initial § 2255 motion); United States v. Emmanuel, 288

F.3d 644, 649 (4th Cir. 2002). However, we find no reversible

error because the instant action is not Brown’s first § 2255

motion. Accordingly, the district court was not required to give

Brown notice before construing his Rule 60(b) motion as a

successive § 2255 motion, and dismissing it for lack of

jurisdiction. It is undisputed that Brown did not obtain

authorization from this court to file a second § 2255 motion. This

court has held that a district court “must treat Rule 60(b) motions

as successive collateral review applications when failing to do so

would allow the applicant to ‘evade the bar against relitigation of

claims presented in a prior application or the bar against

litigation of claims not presented in a prior application.’”

United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003). 
- 3 -

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 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, 338 (2003); Slack

v. McDaniel, 529 U.S. 473 (2000); Rose v. Lee, 252 F.3d 676, 683

(4th Cir. 2001). Brown has not demonstrated that the district

court’s procedural ruling was debatable or wrong. Accordingly, we

deny Brown’s motion for a certificate of appealability and dismiss

the appeal.

Additionally, we construe Brown’s petition for a

certificate of appealability as an application to file a second or

successive motion under 28 U.S.C. § 2255. See Winestock, 340 F.3d

at 208. 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, that has

been made retroactive by the Supreme Court to cases on collateral

review; or (2) newly discovered evidence sufficient to establish
- 4 -

that no reasonable factfinder would have found that movant guilty.

28 U.S.C. §§ 2244(b)(3)(c), 2255 (2000). Brown’s claim does not

satisfy either of these conditions. Therefore, we decline to

authorize Brown 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