                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-7353


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

STARKS FINCHER, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   G. Ross Anderson, Jr., Senior
District Judge. (7:08-cr-01219-GRA-1; 7:11-cv-70010-GRA)


Submitted:   April 23, 2012                 Decided:   May 2, 2012


Before KING, GREGORY, and AGEE, Circuit Judges.


Dismissed in part; affirmed as modified in part by unpublished
per curiam opinion.


Starks Fincher, Jr., Appellant Pro Se. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Starks Fincher, Jr., filed a 28 U.S.C. § 2255 (West

Supp. 2011) motion, raising four claims.                             The district court

denied relief on three claims.                       The court construed the fourth

claim,      in    which      Fincher    sought        retroactive      application      of    a

recent amendment to the United States Sentencing Guidelines, as

an     18    U.S.C.        § 3582(c)(2)      (2006)         motion    for     reduction      of

sentence.         The court denied that motion.                Fincher now appeals.

                 With   respect        to   the       § 2255    claims,       the    district

court’s order           is   not    appealable        unless    a    circuit    justice      or

judge       issues      a    certificate         of    appealability.           28     U.S.C.

§ 2253(c)(1)(B) (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

                                                 2
and conclude that Fincher has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

this portion of the appeal.

            The   district    court   denied       relief    on   the   § 3582(c)

motion because Amendment 748 to the U.S. Sentencing Guidelines

had not been declared retroactive at the time the court issued

its   order.      Amendment   750,    the   successor        to   Amendment   748,

became retroactive effective November 11, 2011.                     In light of

this development, and in order to give Fincher the ability to

raise his claim in a separate § 3582(c)(2) motion, this portion

of the district court’s order is modified to reflect that the

motion is dismissed without prejudice to Fincher’s right to file

another § 3582(c)(2) motion.          With this modification, we affirm

the decision of the district court.

            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 IN PART;
                                              AFFIRMED AS MODIFIED IN PART




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