UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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,

(2006), as a successive

(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.

(c)(1)

(2006). A certificate of appealability will not issue absent “a

substantial showing of the denial of a constitutional right.”

(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,

(2000); see Miller-El v. Cockrell,

(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,

. 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

2 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

3