                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-8455


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

KENNETH R. HYATT,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    James C. Fox, Senior
District Judge. (7:02-cr-00013-F-2; 7:06-cv-00173-F)


Submitted:    August 10, 2009                 Decided:   October 2, 2009


Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO,
Chapel Hill, North Carolina, for Appellant.   Rudolf A. Renfer,
Jr., Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kenneth R. Hyatt seeks to appeal the district court’s

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

2009) 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); Miller-El

v. Cockrell, 537 U.S. 322, 336-38 (2003).                   For claims dismissed

on procedural grounds, this standard is satisfied by showing

both that jurists of reason would find it debatable whether the

motion states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.                      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    Hyatt      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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