UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-6523


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

RANDY NESBITT,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:96-cr-00044-LMB-1; 1:17-cv-
00234-LMB)


Submitted: August 24, 2017                                        Decided: August 29, 2017


Before GREGORY, Chief Judge, and SHEDD and DIAZ, Circuit Judges.


Dismissed in part and affirmed in part by unpublished per curiam opinion.


Randy Nesbitt, Appellant Pro Se. Lawrence Joseph Leiser, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Randy Nesbitt seeks to appeal the district court’s order dismissing as second or

successive his 28 U.S.C. § 2255 (2012) motion and construing his Fed. R. Civ. P. 60(b)

motion as a successive 28 U.S.C. § 2255 motion, and dismissing it on that basis. The

order denying Nesbitt’s successive § 2255 motion 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, 

, 484 (2000); see Miller-El v.

Cockrell, 

, 336-38 (2003).           When the district court denies relief on

procedural grounds, the prisoner must demonstrate both that the dispositive procedural

ruling is debatable, and that the motion states a debatable claim of the denial of a

constitutional right. 

.

       We have independently reviewed the record and conclude that Nesbitt has not

made the requisite showing. Accordingly, we deny a certificate of appealability and

dismiss the appeal in part.

       Insofar as the district court construed Nesbitt’s Rule 60(b) motion as a successive

§ 2255 motion and dismissed it on that basis, we grant leave to proceed in forma pauperis

and affirm in part. See United States v. McRae, 

, 400 (4th Cir. 2015)

(holding that a certificate of appealability is not required in order to address the district

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court’s jurisdictional categorization of a “Rule 60(b) motion as an unauthorized

successive habeas petition”).

      Additionally, we construe Nesbitt’s notice of appeal and informal brief as an

application to file a second or successive § 2255 motion. United States v. Winestock, 

, 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 that . . . would be sufficient to establish by
       clear and convincing evidence that no reasonable factfinder would have
       found the movant guilty of the offense; or
       (2) a new rule of constitutional law, made retroactive to cases on collateral
       review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). Nesbitt’s claims do not satisfy either of these criteria. Therefore,

we deny authorization to file a successive § 2255 motion.

       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.



                                            DISMISSED IN PART; AFFIRMED IN PART




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