United States v. Lewis Moses Byrd

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                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-6555


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LEWIS MOSES BYRD,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.    Graham C. Mullen,
Senior District Judge. (3:03-cr-00067-GCM-DCK-1; 3:08-cv-00257-
GCM)


Submitted:   July 18, 2013                  Decided:   July 23, 2013


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Lewis Moses Byrd, Appellant Pro Se. Kimlani M. Ford, Assistant
United States Attorney, Charlotte, North Carolina, Amy Elizabeth
Ray,   Assistant  United   States  Attorney,   Asheville,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Lewis Moses Byrd seeks to appeal the district court’s

orders construing his motion to amend his 28 U.S.C.A. § 2255

(West    Supp.     2013)      motion   as   a    successive     § 2255    motion      and

dismissing it on that basis, and denying reconsideration of that

order.     The orders are not appealable unless a circuit justice

or    judge   issues      a     certificate     of   appealability.        28    U.S.C.

§ 2253(c)(1)(B) (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, 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 Byrd 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

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contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                               DISMISSED




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