                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-7641


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JEFFREY RIOS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:10-cr-00017-PJM-1; 8:11-cv-02238-PJM)


Submitted:   February 21, 2013            Decided:   March 11, 2013


Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed in part; affirmed in part by unpublished per curiam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


Jeffrey Rios, Appellant Pro Se. Adam Kenneth Ake, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Jeffrey     Rios    seeks      to    appeal      the     district   court’s

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2012)

motion,    which    the      district     court     construed        as    a   motion   for

reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006).                              Rios

insists on appeal that his motion, in which he challenges the

effectiveness of counsel and seeks to have his sentence vacated

for resentencing, was filed pursuant to § 2255; therefore, we

review it as such.

              An order denying relief under § 2255 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.

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           We have independently reviewed the record and conclude

that Rios has not made the requisite showing.                       Accordingly, we

deny a certificate of appealability and dismiss the appeal in

part.

           Although we do not agree with the district court’s

construction     of    the     entirety       of    Rios’    motion    as    one     for

reduction of sentence under § 3582(c)(2), we do agree with the

court’s reasoning in denying that relief.                         Therefore, to the

extent that Rios’ pleading sought relief available pursuant to

§ 3582(c)(2), we affirm the denial of § 3582(c)(2) relief on the

reasoning of the district court.                   Rios v. United States, Nos.

8:10-cr-00017-PJM-1; 8:11-cv-02238-PJM (D. Md. Aug. 29, 2012).

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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