                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-6945


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL REKUS GIBERT,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.    Timothy M. Cain, District Judge.
(8:09-cr-00438-TMC-1; 8:14-cv-02641-TMC)


Submitted:   November 17, 2015            Decided:   November 19, 2015


Before SHEDD, DUNCAN, and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Daniel Rekus Gibert, Appellant Pro Se. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Daniel Rekus Gibert seeks to appeal the district court’s

orders dismissing as untimely his 28 U.S.C. § 2255 (2012) motion

and denying his Fed. R. Civ. P. 59(e) motion.                                  The orders are

not    appealable           unless    a     circuit          justice    or    judge        issues    a

certificate of appealability.                   28 U.S.C. § 2253(c)(1)(B) (2012).

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) (2012).                         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

Gibert     has       not     made     the     requisite          showing.            See     Day    v.

McDonough, 547 U.S. 198, 209-10 (2006) (permitting sua sponte

consideration          of    timeliness       of       postconviction         motion        provided

“court     .     .     .     accord[s]       the       parties     fair        notice       and     an

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opportunity to present their positions”); see Hill v. Braxton,

277 F.3d 701, 706 (4th Cir. 2002).          Accordingly, we deny a

certificate of appealability, deny leave to proceed in forma

pauperis,   and   dismiss   the   appeal.   We   dispense   with   oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.



                                                             DISMISSED




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