                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-7364


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARLES PYNE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:04-cr-00018-AW-3)


Submitted:   March 25, 2011                   Decided:   April 15, 2011


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Charles Pyne, Appellant       Pro Se.        Barbara Suzanne Skalla,
Assistant United States       Attorney,     Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Charles      Pyne     seeks       to       appeal     the     district       court’s

order    construing         his     Fed.       R.       Civ.    P.    60(b)       motion     as    an

unauthorized         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,       368-70      (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, although the district court may have procedurally erred in

recharacterizing           Pyne’s    Rule       60(b)(4)          motion     as     a    successive

                                                    2
§ 2255 motion, application of an alternative procedural ground

renders this appeal futile.             See Reid, 369 F.3d at 372 n.5.

Although Pyne was aware of the alleged error he asserted in his

Rule 60(b) motion at the time he appealed the district court’s

denial of § 2255 relief, he did not raise the issue on appeal.

Because a Rule 60(b) motion is not a substitute for an appeal,

Pyne cannot assert in a post-judgment motion an issue available

to him when he filed his appeal.              See Dowell v. State Farm Fire

& Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993).                          In

addition,   Pyne   did   not    file    his   Rule   60(b)   motion     within   a

reasonable time, as required by Rule 60(c)(1), because he waited

three years after the district court denied his § 2255 motion to

file it.    See McLawhorn v. John W. Daniel & Co., Inc., 924 F.2d

535, 538 (4th Cir. 1991) (per curiam) (discussing reasonable

time requirement).

            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




                                        3
