                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 09-7943


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

JOHNNIE ELVIN MCKELVEY,

                  Defendant   - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:02-cr-00516-DCN-1; 2:09-cv-70080-DCN)


Submitted:    December 15, 2009              Decided:   December 22, 2009


Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Johnnie Elvin McKelvey, Appellant Pro Se.       Robert Nicholas
Bianchi, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Johnnie Elvin McKelvey seeks to appeal the district

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

(West Supp. 2009) 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).         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,     484-85

(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).                                   We

have   independently        reviewed        the     record      and        conclude        that

McKelvey 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 before the

court and argument would not aid the decisional process.



                                                                                DISMISSED



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