                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-6955


STEPHEN RAY WESTBERRY,

                  Petitioner – Appellant,

          v.

MICHAEL MCCALL,

                  Respondent – Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. R. Bryan Harwell, District Judge.
(0:07-cv-03978-RBH)


Submitted:   March 3, 2011                  Decided:   March 21, 2011


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Stephen Ray Westberry, Appellant Pro Se.   Donald John Zelenka,
Deputy   Assistant  Attorney  General,  James   Anthony  Mabry,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Stephen       Ray    Westberry        seeks    to     appeal    the   district

court’s orders denying his Fed. R. Civ. P. 60(b) motion for

reconsideration           of     the    district        court’s       order     accepting    the

recommendation            of     the     magistrate          judge      and     dismissing    as

untimely his 28 U.S.C. § 2254 (2006) petition, and denying a

certificate of appealability.                          The orders are not appealable

unless       a    circuit       justice       or   judge       issues    a     certificate    of

appealability.            28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone,

369    F.3d        363,        369     (4th    Cir.      2004).           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 petition states a debatable claim of the

denial of a constitutional right.                            Slack, 529 U.S. at 484-85.

We    have       independently         reviewed        the    record     and    conclude     that

Westberry has not made the requisite showing.                                  Accordingly, we

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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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