                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6767


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DARREN ANTONIO GRIFFIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.      Terrence W.
Boyle, District Judge. (2:05-cr-00013-BO-1; 2:07-cv-00049-BO)


Submitted:   September 23, 2010           Decided:   October 7, 2010


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Darren Antonio Griffin, Appellant Pro Se.       Steve R. Matheny,
Robert   Edward  Skiver, Assistant     United   States  Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Darren Griffin seeks to appeal the district court’s

order denying his motion to alter or amend the district court’s

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2010)

motion to vacate his sentence.                  For the reasons discussed below,

we will deny a certificate of appealability and dismiss.

              The order Griffin seeks to appeal is not appealable

unless    a    circuit         justice    or    judge     issues       a    certificate       of

appealability.         28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone,

369   F.3d      363,      369     (4th     Cir.       2004).          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    note       first     that       the   district         court     erred     in

construing Griffin’s motion to reconsider as one arising under

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Fed. R. Civ. P. 59(e), when it was filed nearly a year after the

Rule’s deadline.      “A motion to alter or amend a judgment must be

filed no later than 10 days after the entry of the judgment.”

Fed. R. Civ. P. 59(e).           Though Griffin did move for, and was

granted, an extension of time in which to file his motion, the

district court was without power to enlarge the time for filing

a Rule 59(e) motion.           See Panhorst v. United States, 241 F.3d

367, 370 (4th Cir. 2001); Alston v. MCI Commc’ns Corp., 84 F.3d

705, 706 (4th Cir. 1996); Fed. R. Civ. P. 6(b) (“[The district

court] may not extend the time for taking any action under Rules

50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a),

except to the extent and under the conditions stated in them.”).

Thus, the district court’s order granting Griffin’s motion to

file a Rule 59(e) motion out of time was not authorized under

the Federal Rules of Civil Procedure.

          The   district       court    should       have    construed   Griffin’s

motion as a Fed. R. Civ. P. 60(b) motion.                     See In re Burnley,

988 F.2d 1, 2-3 (4th Cir. 1992) (if motion for reconsideration

is filed outside ten-day period set forth in Rule 59(e), motion

should be treated as Rule 60(b) motion).                    In addition, because

the motion only attacked the merits of the underlying order,

rather   than     a     defect     in         the    § 2255    proceeding,      the

reconsideration       motion     should       have    been     construed   as   an

unauthorized second or successive § 2255 motion and dismissed on

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that basis. *      See United States v. Winestock, 340 F.3d 200, 206

(4th Cir. 2003).         On appeal, Griffin only seeks review of the

underlying merits of his § 2255 motion.                Because the district

court       was   without   authority       to   consider    his     motions   to

reconsider, however, we may not now review the merits of the

underlying order dismissing Griffin’s § 2255 motion.

              Accordingly, we conclude that Griffin has not made a

substantial showing of the denial of a constitutional right, and

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




        *
       After granting Griffin’s motion to extend time to file a
motion to reconsider, construing the motion as one arising under
Rule 59(e), and denying the motion, the district court
entertained and denied a second untimely Rule 59(e) motion.
Both motions should have been construed as successive § 2255
motions and dismissed.



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