UNPUBLISHED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Affirmed in part and dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.
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, 

, 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

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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

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, 

, 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, 

, 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); 

.

     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




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