UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8124

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PHILLIP AUBREY IRVING,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (7:04-cr-00078-jct-mfu-1; 7:07-cv-80018-jct-mfu)

Submitted: December 11, 2008 Decided: December 18, 2008

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Phillip Aubrey Irving, Appellant Pro Se. Julia C. Dudley, Acting United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Phillip Aubrey Irving seeks to appeal the district

court’s order dismissing as untimely his

(2000)

motion. The order is not appealable unless a circuit justice or

judge issues a certificate of appealability.

(c)(1) (2000). A certificate of appealability will not

issue absent “a substantial showing of the denial of a

constitutional right.”

(c)(2) (2000). A

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that any assessment of the

constitutional claims by the district court is debatable or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable. Miller-El v. Cockrell,

(2003); Slack v. McDaniel,

(2000);

Rose v. Lee,

(4th Cir. 2001). We have

independently reviewed the record and conclude that Irving has

not made the requisite showing. Accordingly, we deny Irving’s

motion for 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

before the court and argument would not aid the decisional

process.

DISMISSED

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