UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-6818

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

XAVIER MARCELLUS PAUL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (CR-98-192-A; CA-00-1506)

Submitted: July 30, 2004 Decided: September 21, 2004

Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Dismissed by unpublished per curiam opinion.

Xavier Marcellus Paul, Appellant Pro Se. Morris Rudolph Parker,

Jr., Assistant United States Attorney, Alexandria, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

Xavier Marcellus Paul seeks to appeal the district

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

reconsideration of the court’s order dismissing Paul’s “Motion to

Vacate, Set Aside, or Correct Sentence,” which the district court

denied without comment. In United States v. Winestock, this court

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.) (quoting

Calderon v. Thompson, 523 U.S. 538, 553 (1998)), cert. denied, ___

U.S. ___, 124 S. Ct. 496 (2003). Paul’s Rule 60(b) motion should

have been treated as successive by the district court because the

claims he sought to raise were presented in his first 28 U.S.C.

§ 2255 (2000) motion. Because Paul’s Rule 60(b) motion should have

been treated as a 28 U.S.C. § 2255 motion, the procedural rules

pertaining to a certificate of appealability apply.

An appeal may not be taken from the final order in a

§ 2255 proceeding 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 absent “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.
- 3 -

§ 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, 338 (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 Paul has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.

Additionally, we construe Paul’s notice of appeal and

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

successive motion under 28 U.S.C. § 2255. See United States v.

Winestock, 340 F.3d at 208. Paul’s claims do not satisfy the

conditions set forth in 28 U.S.C. §§ 2244(b)(2), 2255 (2000).

Therefore, we decline to authorize Paul 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