                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-7005


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CLAUDE VANCE COOLEY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.   Graham C. Mullen,
Senior District Judge. (5:91-cr-00054-GCM-1; 5:09-cv-00049-GCM)


Submitted:    August 31, 2009              Decided:   September 24, 2009


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Claude Vance Cooley, Appellant Pro Se.       Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Claude     Vance       Cooley       seeks    to     appeal       the    district

court’s order construing his “Independent Equitable Action” as a

successive    28    U.S.C.A.       § 2255       (West    Supp.       2009)    motion,       and

dismissing it on that basis.               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 (2000);

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

independently reviewed the record and conclude that the district

court’s construction of Cooley’s action as a successive § 2255

motion is neither debatable nor wrong.                          Contrary to Cooley’s

argument    on     appeal,    Castro       v.    United       States,      540     U.S.     375

(2003),    affords    him     no    benefit      as     its    requirement         of    notice

before a pleading is construed as a § 2255 motion applies only

to a pleading treated as the litigant’s first § 2255 motion.

Because Cooley had earlier pursued § 2255 relief, the pleading

                                            2
recharacterized    by     the    district    court   was   not   construed      as

Cooley’s   initial      § 2255     motion.      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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