                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-7493


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAMON BRIGHTMAN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:03-cr-00627-SB-2; 2:08-cv-70138-SB)


Submitted:   January 13, 2011             Decided:   January 21, 2011


Before MOTZ, KING, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Damon Brightman, Appellant Pro Se.       Nathan S.         Williams,
Assistant United States Attorney, Charleston, South        Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Damon Brightman seeks to appeal the district court's

order    denying       his      motion      to    reconsider         the       district   court's

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2010)

motion to vacate his sentence.                    For the reasons discussed below,

we will deny a certificate of appealability and dismiss.

               The order Brightman seeks to appeal 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    note       first      that       the   district           court   erred      in

considering the merits of Brightman’s untimely Fed. R. Civ. P.

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59(e) motion.        “A motion to alter or amend a judgment must be

filed no later than 10 days after the entry of the judgment.”

Fed. R. Civ. P. 59(e).                 Though the district court entertained

the motion despite noting that it was filed twenty-five days

after the rule’s deadline, the court was without power to do so.

See      Panhorst        v.     United        States,         241     F.3d    367,      370

(4th Cir. 2001); Alston v. MCI Commc’ns Corp., 84 F.3d 705, 706

(4th Cir. 1996); Fed. R. Civ. P. 6(b) (“[The district court] may

not extend the time for taking any action under Rules 50(b) and

(c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to

the extent and under the conditions stated in them.”).                               Thus,

the   district      court’s      decision           to    allow   Brightman   to   proceed

under Rule 59(e) was not authorized under the Federal Rules of

Civil Procedure.

            The district court should have construed Brightman’s

motion as a Fed. R. Civ. P. 60(b) motion. See In re Burnley, 988

F.2d 1, 2-3 (4th Cir. 1992) (if motion for reconsideration is

filed outside ten-day period set forth in Rule 59(e), motion

should be treated as Rule 60(b) motion).                          In addition, because

the motion only attacked the merits of the underlying order,

rather     than      a        defect     in         the     § 2255    proceeding,       the

reconsideration          motion        should        have    been    construed     as   an

unauthorized second or successive § 2255 motion and dismissed on

that basis.       See United States v. Winestock, 340 F.3d 200, 206

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(4th Cir. 2003). On appeal, Brightman only seeks review of the

underlying merits of his § 2255 motion.             Because the district

court   was     without   authority       to   consider   his     motion   to

reconsider, however, we may not now review the merits of the

underlying order dismissing Brightman’s § 2255 motion.

           Accordingly, we conclude that Brightman has not made a

substantial showing of the denial of a constitutional right, and

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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