UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-7191

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

DWAYNE MCFADDEN, 

Defendant - Appellant. 

Appeal from the United States District Court for the District of 

South Carolina, at Florence. Terry L. Wooten, Chief District 

Judge. (4:04-cr-00564-TLW-1) 

Submitted: December 8, 2015 Decided: December 18, 2015

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

Circuit Judge. 

Affirmed in part and dismissed in part by unpublished per curiam 

opinion. 

Dwayne McFadden, Appellant Pro Se. Rose Mary Parham, PARHAM LAW 

OFFICE, Florence, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Dwayne McFadden seeks to appeal the district court’s order 

denying his motion for a new trial. 

With respect to the portion of the district court’s order 

denying relief under Fed. R. Crim. P. 33, we have reviewed the 

record and find no reversible error. Accordingly, we affirm the

district court’s order in part for the reasons stated by the 

district court. United States v. McFadden, No. 

4:04-cr-00564-TLW-1 (D.S.C. June 3, 2015). 

The portion of the district court’s order construing the 

new trial motion as seeking relief under 28 U.S.C. § 2255 (2012) 

and denying such relief to McFadden is not appealable unless a 

circuit justice or judge issues a certificate of appealability. 

28 U.S.C. § 2253(c)(1)(B) (2012). 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) 

(2012). 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 
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debatable, 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 reviewed the record and conclude that 

McFadden has not made the requisite showing. The district court 

lacked jurisdiction to deny § 2255 relief on the merits. 

McFadden’s motion challenged the validity of his sentence. The 

motion was properly construed as a successive § 2255 motion, 

see Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005) (explaining 

how to differentiate a true Fed. R. Civ. P. 60(b) motion from an 

unauthorized second or successive habeas corpus petition); 

United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003) 

(same), but should have been dismissed for lack of jurisdiction 

in light of the absence of pre-filing authorization from this 

court. See 28 U.S.C. § 2244(b)(3) (2012); Winestock, 340 F.3d 

at 205. 

Accordingly, we deny a certificate of appealability and 

dismiss the appeal in part. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before this court and argument would not aid 

the decisional process. 

AFFIRMED IN PART AND

DISMISSED IN PART