                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-6323


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KENNETH D. BEVERLY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Henry E. Hudson, District
Judge. (3:05-cr-00526-HEH-1; 3:13-cv-00060)


Submitted:   June 13, 3013                 Decided:   June 17, 2013


Before NIEMEYER, KING, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Kenneth D. Beverly, Appellant Pro Se. Steven T. Buck, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Gurney Wingate Grant, II,
Assistant United States Attorney, Gregg Robert Nivala, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kenneth        D.    Beverly     seeks      to      appeal     the     district

court’s order construing his Fed. R. Crim. P. 36 motion as a 28

U.S.C.A.    § 2255    (West       Supp.    2012)     motion,       and    denying    it     as

successive.     Because we find that the district court correctly

construed    the    motion,       the     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 and conclude

that Beverly has not made the requisite showing.                            Accordingly,

we deny a certificate of appealability, deny leave to proceed in

forma pauperis, and dismiss the appeal.                        We dispense with oral

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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




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