                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-6451


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAVID LYNN HATFIELD,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.      Thomas E. Johnston,
District Judge. (5:02-cr-00219-1; 5:10-cv-00128)


Submitted:   July 15, 2013                 Decided:   July 23, 2013


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David Lynn Hatfield, Appellant Pro Se.     Joshua Clarke Hanks,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             David    Lynn     Hatfield        seeks    to     appeal    the    district

court’s order denying relief on his 28 U.S.C.A. § 2255 (West

Supp.    2013)    motion. 1     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.




     1
         Hatfield   also  challenges   the   district   court’s
re-characterization of his filing as one arising under § 2255.
Hatfield, however, failed to object to the district court’s
re-characterization despite receiving notice of the court’s
intent to do so. Accordingly, we decline to consider this claim
on appeal. See Muth v. United States, 1 F.3d 246, 250 (4th Cir.
1993).



                                           2
           We have independently reviewed the record and conclude

that Hatfield has not made the requisite showing. 2           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

this court and argument would not aid the decisional process.



                                                                  DISMISSED




      2
       The magistrate judge issued a report addressing the merits
of Hatfield’s claims and recommending the denial of the § 2255
motion.   The district court denied Hatfield’s motion as moot
because Hatfield had been released from custody and completed
his term of supervised release before the district court reached
a decision on the motion.    Because Hatfield was in custody at
the time he filed his motion, it should not have been dismissed
as moot.   Carafas v. LaVallee, 391 U.S. 234 (1968).     However,
after carefully reviewing the record, we conclude that although
the district court’s procedural disposition was erroneous,
Hatfield’s motion, considered on its merits, fails to state a
debatable claim of the denial of a constitutional right.



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