                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6037


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

LYNN GARY SMITH, a/k/a Eastside,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:03-cr-00093-F-1; 7:08-cv-00178-F)


Submitted:    May 28, 2009                   Decided:   June 5, 2009


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Lynn Gary Smith, Appellant Pro Se.       Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Lynn Gary Smith seeks to appeal the district court’s

order dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp.

2008) motion.           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 Smith 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

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                                     DISMISSED



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