UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 13-7514

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHIRLAND L. FITZGERALD,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Danville. Samuel G. Wilson, District Judge. (4:08-cr-00001-SGW-1; 4:13-cv-80625-SGW-RSB)

Submitted: November 15, 2013 Decided: November 20, 2013

Before MOTZ, GREGORY, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Shirland L. Fitzgerald, Appellant Pro Se. Anthony Paul Giorno, Assistant United States Attorney, Roanoke, Virginia; Mitchell Stuart Bober, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Shirland L. Fitzgerald seeks to appeal the district

court’s order treating his Fed. R. Civ. P. 60(b) motion as a

successive

(2012) motion, and dismissing it

without prejudice 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 Fitzgerald 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

2 before this court and argument would not aid the decisional

process.

DISMISSED

3