                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-7431


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAVID HOWARD HUGHES,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:05-cr-00273-MR-1)


Submitted:   January 18, 2011             Decided:   January 28, 2011


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David Howard Hughes, Appellant Pro Se.       Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                David      Howard       Hughes       seeks    to     appeal       the    district

court’s order construing his Petition for Writ of Error Audita

Querela, 28 U.S.C. § 1651 (2006), as a successive 28 U.S.C.A.

§ 2255 (West Supp. 2010) motion and denying it on that basis,

and a subsequent order denying his motion for reconsideration.

The orders are 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).                       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     Hughes      has     not       made     the     requisite         showing.

Accordingly, we deny a certificate of appealability, deny leave

to   proceed     in     forma     pauperis,          and     dismiss    the       appeal.        We

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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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