UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 11-7366

JAMES P. SMITH,

Petitioner - Appellant,

v.

UNITED STATES OF AMERICA; THE BATF,

Respondents - Appellees.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:08-cv-00919)

Submitted: January 31, 2012 Decided: February 3, 2012

Before NIEMEYER, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James Preston Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

James P. Smith seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge,

construing his

(2006) petition as a successive

(West Supp. 2011) motion, and dismissing it

for lack of jurisdiction. The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.

(c)(1)(B) (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

Smith 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

2 contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

DISMISSED

3