UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-7170


RUDOLPH SMITH,

                 Petitioner – Appellant,

          v.

GENE M. JOHNSON,     Director   of   the   Virginia   Department   of
Corrections,

                 Respondent – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Mark S. Davis, District
Judge. (2:10-cv-00081-MSD-TEM)


Submitted:   December 9, 2010              Decided:    December 21, 2010


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


Dismissed by unpublished per curiam opinion.


Rudolph Smith, Appellant Pro Se.     Rosemary Virginia Bourne,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Rudolph      Smith    seeks       to    appeal        the   district     court’s

order accepting the recommendation of the magistrate judge and

denying relief on his 28 U.S.C. § 2254 (2006) petition.                                      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).                      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,        

,    484

(2000); see Miller-El v. Cockrell, 

, 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 petition states a debatable

claim of the denial of a constitutional right.                              

.         We    have    independently            reviewed        the    record    and

conclude      that    Smith        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



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED




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