                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-7051


GREGORY T. GARY,

                Petitioner – Appellant,

          v.

GENE   M.   JOHNSON,    Director,   Virginia     Department    of
Corrections,

                Respondent – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Jerome B. Friedman, Senior
District Judge. (2:10-cv-00054-JBF-FBS)


Submitted:   February 10, 2011            Decided:   February 17, 2011


Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Gregory T. Gary, Appellant Pro Se.    Rosemary Virginia Bourne,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Gregory T. Gary seeks to appeal the district court’s

order     dismissing      his     28   U.S.C.      § 2254      (2006)     petition       as

untimely filed.          The order is not appealable unless a circuit

justice or judge issues a certificate of appealability.                            See 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).              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    Gary    has      not   made   the      requisite   showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.        We further deny Gary’s motions for transcript at

government expense and for subpoena duces tecum.                           We dispense

with oral argument because the facts and legal contentions are



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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                               DISMISSED




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