                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-7366


JAMES P. SMITH,

                  Petitioner - Appellant,

          v.

UNITED STATES OF AMERICA; THE BATF,

                  Respondents - Appellees.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.      Irene C. Berger,
District Judge. (5:08-cv-00919)


Submitted:   January 31, 2012                Decided:   February 3, 2012


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


James Preston Smith, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

             James P. Smith seeks to appeal the district court’s

order    accepting        the   recommendation         of   the      magistrate       judge,

construing his 28 U.S.C. § 2241 (2006) petition as a successive

28 U.S.C.A. § 2255 (West Supp. 2011) motion, and dismissing it

for lack of jurisdiction.               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

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

                                             2
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           DISMISSED




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