UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-6673

MERRICK RALPH FALESBORK, a/k/a

Merc, a/k/a Merrick,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca Beach Smith, District Judge.

(CR-91-116)

Submitted: May 15, 2003

Decided: June 11, 2003

Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion. 

COUNSEL

Merrick Ralph Falesbork, Appellant Pro Se. Laura Marie Everhart,

Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Merrick Ralph Falesbork seeks to appeal the district court’s decision dismissing his motion under Fed. R. Civ. P. 60(b),* which the

district court construed as a motion under 28 U.S.C. § 2255 (2000),

and dismissed as untimely and successive. This Court may grant a

certificate of appealability only if the appellant makes a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2)

(2000). Where, as here, a district court dismisses a habeas petition on

procedural grounds, a certificate of appealability will not issue unless

the petitioner can demonstrate both "(1) ‘that jurists of reason would

find it debatable whether the petition states a valid claim of the denial

of a constitutional right’ and (2) ‘that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.’" Rose v. Lee, 252 F.3d 676, 684 (4th Cir.) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)), cert. denied, 534 U.S. 941

(2001). We have independently reviewed the record and conclude that

Falesbork has not satisfied either standard. See Miller-El v. Cockrell,

123 S. Ct. 1029 (2003). 

We must construe Falesbork’s notice of appeal and informal brief

on appeal as an application to file a successive motion to vacate under

28 U.S.C. § 2255. See United States v. Winestock, __ F.3d __, 2003

WL 1949822, at *7 (4th Cir. Apr. 25, 2003). In order to obtain authorization to file a second motion to vacate, a movant must allege

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 that would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would have found the movant guilty of the offense.

28 U.S.C. §§ 2244(b), 2255 ¶ 8 (2000). Falesbork’s claims do not sat-

*Falesbork stated in his motion that he was seeking a writ of audita

querela, citing 28 U.S.C. § 1651 (2000), as well as Fed. R. Civ. P. 60(b).

We have held that relief from judgment should be sought with Rule 60(b)

rather than with the abolished writ of audita querela. Werner v. Carbo,

731 F.2d 204, 207 (4th Cir. 1984). 

2 UNITED STATES v. FALESBORK
isfy either of these conditions. Therefore, we decline to authorize

Falesbork to file a successive § 2255 application. 

Accordingly, we deny a certificate of appealability and dismiss the

appeal. 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

UNITED STATES v. FALESBORK 3