                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-7160


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAVID CORNELL SPENCE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.     Louise W. Flanagan,
Chief District Judge. (5:07-cr-00289-FL-1; 5:09-cv-00161-FL)


Submitted:   February 24, 2011            Decided:   March 2, 2011


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David Cornell Spence, Appellant Pro Se. Jennifer P. May-Parker,
Rudolf A. Renfer, Jr., Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            David    Cornell    Spence         seeks   to     appeal       the   district

court’s    order    accepting   the       recommendation           of   the    magistrate

judge and dismissing as untimely his 28 U.S.C.A. § 2255 (West

Supp.    2010)   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).                    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 Spence 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



                                           2
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED




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