                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 02-7492



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


FRANK J. MASIARCZYK, JR.,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Northen
District to West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-97-39, CA-02-29-1)


Submitted:   March 21, 2003                 Decided:   April 1, 2003


Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Frank J. Masiarczyk, Jr., Appellant Pro Se.     Sharon L. Potter,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Frank J. Masiarczyk, Jr., seeks to appeal the district court’s

order denying relief on his motion filed under 28 U.S.C. § 2255

(2000).   An appeal may not be taken to this court from the final

order in a motion under § 2255 unless a circuit justice or judge

issues a certificate of appealability.      28 U.S.C. § 2253(c)(1)

(2000).   A certificate of appealability will not issue for claims

addressed by a district court on the merits absent “a substantial

showing of the denial of a constitutional right.”         28 U.S.C.

§ 2253(c)(2) (2000).    As to claims dismissed by a district court

solely on procedural grounds, a certificate of appealability will

not issue unless the petitioner can demonstrate both “(1) ‘that

jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right’ and

(2) ‘that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.’”      Rose v.

Lee, 252 F. 3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)).     We have independently reviewed the

record and conclude Masiarczyk has not made the requisite showing.

See Miller-El v. Cockrell,       U.S.    , 123 S. Ct. 1029, 1039-40

(2003).   Accordingly, we deny a certificate of appealability and

dismiss the appeal.    See 28 U.S.C. § 2253(c) (2000).   We dispense

with oral argument because the facts and legal contentions are




                                  2
adequately presented in the materials before the court and argument

would not aid the decisional process.




                                                         DISMISSED




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