UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7568

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARCELLUS THOMAS,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Lacy H. Thornburg, District Judge. (3:00-cr-00233-LHT-4; 3:09-cv-00331-LHT)

Submitted: December 15, 2009 Decided: December 21, 2009

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Marcellus Thomas, Appellant Pro Se. Thomas Richard Ascik, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Marcellus Thomas seeks to appeal the district court’s

order dismissing as untimely his

(West Supp.

2009) motion. The order is not appealable unless a circuit

justice or judge issues a certificate of appealability.

(c)(1) (2006). A certificate of appealability will

not issue absent “a substantial showing of the denial of a

constitutional right.”

(c)(2) (2006). 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 Thomas 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 before the

court and argument would not aid the decisional process.

DISMISSED

2