                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7771


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

LIONEL STAINE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Malcolm J. Howard,
Senior District Judge. (4:02-cr-00060-H-1; 4:08-cv-00085-H)


Submitted:    January 13, 2010              Decided:   January 27, 2010


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Lionel Staine, Appellant Pro Se. Kimberly Ann Moore, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lionel    Staine    seeks       to    appeal       the   district   court’s

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009)

motion.      The court denied Staine’s motion on the merits and

because it was untimely.             The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1) (2006).                  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)      (2006).      A

prisoner     satisfies      this          standard       by     demonstrating        that

reasonable      jurists   would          find    that    any     assessment     of    the

constitutional     claims      by    the    district      court      is   debatable    or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable.                Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).                              We have

independently reviewed the record and conclude Staine has not

made the requisite showing.               Accordingly, we deny a certificate

of appealability and dismiss the appeal.                       We also deny Staine’s

motion    for   appointment         of    counsel.        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

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