                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-7495


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HARVEY LEE HAYES, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       Glen E. Conrad, Chief
District Judge. (7:06-cr-00002-gec-1; 7:10-cv-80278-gec-mfu)


Submitted:   January 13, 2011             Decided:   January 21, 2011


Before MOTZ, KING, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Harvey Lee Hayes, Jr., Appellant Pro Se. Ronald Andrew Bassford,
Assistant  United   States  Attorney,  Roanoke,   Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Harvey Lee Hayes, Jr., seeks to appeal the district

court’s    order    dismissing    as    untimely       his    28   U.S.C.A.      §   2255

(West Supp. 2010) motion.            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).                 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 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   Hayes   has     not   made    the    requisite      showing.

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




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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED




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