**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 1**  **0 -**  **6 961** 

UNITED STATES OF AMERICA , Plaintiff

– Appellee ,
v. JAMES ROCKETT, III , a/k/a J ames Rocket, a/k/a James Rockett , Defendant

– Appellant
.

Appeal from the Unit ed States District Court for the Eastern District of Virginia , at Norfolk
. Mark S. Davis , District Judge. ( 2 : 05

- c r - 00 135

- WDK

- JEB

- 1; 2:07

- cv - 00336

- WDK )

Submitted : October 19 , 2010 Decided: October 28, 2010

Before DUNCAN, KEENAN, and WYNN, Circuit Judge s .
Dismiss ed by un published per curiam opinion
.

J ames Rockett, III , Appellant Pro Se. Darryl James Mitchell , Assistant United States Attorney, Norfolk , Virginia , for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 P ER CURIAM: James Rockett, III, seeks to appeal the district court’s order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. A. § 2255 ( West Supp. 2010 ) 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) (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 rig ht.” 28 U.S.C. § 2253(c)(2) (2006)
. When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel , 529 U.S. 473, 484 (2000); see Miller

- El v. Cockrell , 537 U.S. 322, 336

- 38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is deba table, and that the motion states a debatable claim of the denial of a constitutional right. Slack , 529 U.S. at 484

- 85. We have independently review ed the record and conclude that Rockett has not made the requisite showing. Accordingly, we deny a certif icate of appealability and dismiss the appeal.3 Additionally, we construe Rockett ’s notice of appeal and informal brief as an application to file a second or successive § 2255 motion. United States v. Winestock , 340 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) 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. § 22 55(h ) . Rockett ’s claims do not satisfy either of these criteria. Therefore, we deny authorization to fi le a successive § 2255 motion. Finally, we deny Rockett’s motion to seal and motion
to subpoena or submit witness statements. 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