                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-6855


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WADE CUTCHEN, a/k/a Tool Man,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Arenda Wright Allen,
District Judge. (4:99-cr-00055-AWA-2)


Submitted:   August 22, 2012                 Decided: August 27, 2012


Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Wade Cutchen, Appellant Pro Se. Timothy Richard Murphy, Special
Assistant United States Attorney, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Wade    Cutchen      seeks        to    appeal       the       district   court’s

order    construing         his    motion       to     dismiss      the       indictment       as    a

successive       28    U.S.C.A.         § 2255        (West    Supp.         2012)    motion    and

dismissing it on that basis.                    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 Cutchen has not made the requisite showing.                                     Accordingly,

we   deny      his    motion      for     a    certificate          of       appealability      and

dismiss the appeal.               We dispense with oral argument because the

facts    and    legal       contentions         are     adequately           presented    in    the

                                                 2
materials   before   the   court   and   argument   would   not    aid   the

decisional process.

                                                                  DISMISSED




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