                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-6592


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LEROY JOSEPH KELLY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:97-cr-00333-MOC-1; 3:00-cv-00002-RLV)


Submitted:   August 22, 2013                 Decided: August 26, 2013


Before MOTZ, DIAZ, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Leroy J. Kelly, Appellant Pro Se. C. Nicks Williams, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Leroy     Joseph         Kelly    seeks       to     appeal       the    district

court’s    order       treating      his    Fed.       R.    Civ.    P.       60(d)    motion    of

independent      action       as    a    successive         28    U.S.C.A.       § 2255       (West

Supp. 2013) 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)(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.

               We have independently reviewed the record and conclude

that Kelly has not made the requisite showing.                                 Accordingly, we

deny a certificate of appealability and dismiss the appeal.                                     We

dispense       with     oral       argument          because      the     facts       and     legal

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contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                               DISMISSED




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