UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7431
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID HOWARD HUGHES,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:05-cr-00273-MR-1)
Submitted: January 18, 2011 Decided: January 28, 2011
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Howard Hughes, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Howard Hughes seeks to appeal the district
court’s order construing his Petition for Writ of Error Audita
Querela, 28 U.S.C. § 1651 (2006), as a successive 28 U.S.C.A.
§ 2255 (West Supp. 2010) motion and denying it on that basis,
and a subsequent order denying his motion for reconsideration.
The orders are 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, 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 Hughes has not made the requisite showing.
Accordingly, we deny a certificate of appealability, deny leave
to proceed in forma pauperis, and dismiss the appeal. We
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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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