UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6396
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BERNARD GARY SMITH, a/k/a Sonny,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:03-cr-00222-LMB-1; 1:12-cv-01515-LMB)
Submitted: July 18, 2013 Decided: July 23, 2013
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Bernard Gary Smith, Appellant Pro Se. Jonathan Leo Fahey,
Assistant United States Attorney, Adrienne Frazier, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard Gary Smith seeks to appeal the district
court’s order construing his motion to dismiss as a motion
pursuant to 28 U.S.C.A. § 2255 (West Supp. 2013), and denying it
as successive. The order is 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 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
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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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