UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-7161

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THOMAS TRAY SHARMONE KEARNEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:04-cr-00015-BO-1; 2:09-cv-55-BO)

Submitted: November 2, 2012 Decided: November 6, 2012

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas Tray Sharmone Kearney, Appellant Pro Se. Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Thomas Tray Sharmone Kearney seeks to appeal the

district court’s order construing his “Motion to Protect the

Constitutional Rights of the Indicted from Void Judgment” as a

successive

(West Supp. 2012) motion and

dismissing it on that basis. 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 Kearney 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