United States v. Wheeler

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7058
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AVERY WHEELER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:05-cr-00113-DWK-JEB-1)
Submitted: October 8, 2010 Decided: October 25, 2010
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Avery Wheeler, Appellant Pro Se. Laura Marie Everhart,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Avery Wheeler seeks to appeal the district court’s
orders denying relief on his 28 U.S.C.A. § 2255 (West Supp.
2010) motion and denying his motion for reconsideration under
Fed. R. Civ. P. 59(e). The orders are not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363,
369 (4th Cir. 2004). 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, deny leave
to proceed in forma pauperis, 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
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