United States v. Gerald Wheeler

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6643
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERALD ADRIAN WHEELER, a/k/a Bay-Bay,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:06-cr-00363-RJC-3; 3:10-cv-00289-
RJC)
Submitted: October 26, 2012 Decided: November 7, 2012
Before MOTZ, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gerald Adrian Wheeler, Appellant Pro Se. C. Nicks Williams,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald Adrian Wheeler seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2012) motion. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(B) (2006). A certificate of
appealability will not issue absent “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(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, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (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, 529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Wheeler has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
We note that Wheeler’s claim for retroactive application of the
Supreme Court’s opinion in Carachuri-Rosendo v. Holder, 130 S.
Ct. 2577 (2010), and our opinion in United States v. Simmons,
2
649 F.3d 237, 241-45 (4th Cir. 2011) (en banc), fails in light
of our recent opinion in United States v. Powell, 691 F.3d 554(4th Cir. 2012). 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
3