                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-6822


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KALVIN MARSHALL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Henry E. Hudson, District
Judge. (3:02-cr-00225-HEH-2; 3:10-cv-00331-HEH)


Submitted:   August 26, 2010                 Decided:   September 7, 2010


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Kalvin Marshall, Appellant Pro Se.   David Thomas Maguire,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Kalvin Marshall seeks to appeal the district court’s

order    construing     his        “Writ    of       error     Audita          Querela”    as    a

successive     28    U.S.C.A.          § 2255       (West    Supp.       2010)     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)             (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   have   independently          reviewed         the     record       and    conclude     that

Marshall has not made the requisite showing.                                   Accordingly, we

deny a certificate of appealability and dismiss the appeal.



                                                2
            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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