                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-6071


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHAWN RHONDU SMITHWICK,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    James C. Fox, Senior
District Judge. (5:06-cr-00121-F-1; 5:08-cv-00538-F)


Submitted:   April 13, 2010                    Decided:    May 12, 2010


Before TRAXLER,   Chief   Judge,   and   NIEMEYER   and   KING,   Circuit
Judges.


Dismissed by unpublished per curiam opinion.


Shawn Rhondu Smithwick, Appellant Pro Se. Anne Margaret Hayes,
Rudolf A. Renfer, Jr., Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Shawn Rhondu Smithwick seeks to appeal the district

court’s    order    dismissing      as    untimely     his    28    U.S.C.A.      §     2255

(West Supp. 2009) motion.           The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1) (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).         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 Smithwick

has not made the requisite showing.                     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



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