                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-7776



UNITED STATES OF AMERICA,



                                               Plaintiff - Appellee,

          versus


DEREK MARQUIS FLEMING,

                                             Defendant - Appellant.




Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-91-179; CR-91-78; CA-05-602-1)


Submitted: August 31, 2006                 Decided: September 5, 2006


Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Derek Marquis Fleming, Appellant Pro Se. Angela Hewlett Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Derek    Marquis     Fleming     seeks   to    appeal     the    district

court’s order accepting the recommendation of the magistrate judge,

construing a motion for clarification of the criminal judgment as

a successive motion under 28 U.S.C. § 2255 (2000), and dismissing

it for lack of jurisdiction.             The order is not appealable unless a

circuit justice or judge issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2000).              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) (2000).           A prisoner

satisfies this standard by demonstrating that reasonable jurists

would find that any assessment of the constitutional claims by the

district court is debatable or wrong and that any dispositive

procedural ruling by the district court is likewise debatable.

Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.

McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-

84 (4th Cir. 2001).          We have independently reviewed the record and

conclude      that    Fleming      has   not   made    the    requisite        showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.    We deny Fleming’s petition for writ of mandamus as moot

and   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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