                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6290



MICHAEL LYNN BROWN,

                                             Petitioner - Appellant,

          versus


D. A. BRAXTON, Warden,

                                              Respondent - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-04-417-7-JCT)


Submitted:   August 31, 2005            Decided:   September 14, 2005


Before KING, GREGORY, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Michael Lynn Brown, Appellant Pro Se. William W. Muse, Assistant
Attorney General, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael Lynn Brown, a state prisoner, seeks to appeal the

district court’s order construing his petition for writ of mandamus

as a petition filed under 28 U.S.C. § 2254 (2000), granting

Respondent’s motion to dismiss, and denying Brown relief.

            The district court must give a prisoner notice and an

opportunity to respond before construing a mislabeled or unlabeled

post-conviction motion as an initial § 2254 petition.           Castro v.

United States, 540 U.S. 375, 383 (2003); United States v. Emmanuel,

288 F.3d 644, 649 (4th Cir. 2002).         Here, Brown was not entitled to

notice before the court construed his mandamus petition as a § 2254

petition because the instant action is not his first § 2254

petition.

            The order is not appealable 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

absent “a substantial showing of the denial of a constitutional

right.”    28 U.S.C. § 2253(c)(2) (2000).        A prisoner satisfies this

standard by demonstrating that reasonable jurists would find that

his constitutional claims are debatable and that any dispositive

procedural rulings by the district court are also debatable or

wrong.     See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d




                                     - 2 -
676, 683 (4th Cir. 2001).     We have independently reviewed the

record and conclude that Brown has not made the requisite showing.

          Accordingly, we deny Brown’s motion for 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




                              - 3 -
