UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-7160


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAVID CORNELL SPENCE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.     Louise W. Flanagan,
Chief District Judge. (5:07-cr-00289-FL-1; 5:09-cv-00161-FL)


Submitted:   February 24, 2011            Decided:   March 2, 2011


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David Cornell Spence, Appellant Pro Se. Jennifer P. May-Parker,
Rudolf A. Renfer, Jr., Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            David    Cornell    Spence         seeks   to     appeal       the   district

court’s    order    accepting   the       recommendation           of   the    magistrate

judge and dismissing as untimely his 28 U.S.C.A. § 2255 (West

Supp.    2010)   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).                    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 motion states a

debatable claim of the denial of a constitutional right.                             

.         We have independently reviewed the record

and conclude that Spence 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



                                           2
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED




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