UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7771

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LIONEL STAINE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (4:02-cr-00060-H-1; 4:08-cv-00085-H)

Submitted: January 13, 2010 Decided: January 27, 2010

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Lionel Staine, Appellant Pro Se. Kimberly Ann Moore, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Lionel Staine seeks to appeal the district court’s

order denying relief on his

(West Supp. 2009)

motion. The court denied Staine’s motion on the merits and

because it was untimely. 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 Staine has not

made the requisite showing. Accordingly, we deny a certificate

of appealability and dismiss the appeal. We also deny Staine’s

motion for appointment of counsel. 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