ON PETITION FOR REHEARING AND
REHEARING EN BANC
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-6835
FAHED T. TAWALBEH,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-97-24-R, CA-00-858)
Submitted: April 15, 2003
Decided: May 30, 2003
Before NIEMEYER and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Rehearing granted, rehearing en banc denied, and appeal dismissed by
unpublished per curiam opinion.
COUNSEL
Robert F. Rider, ROBERT F. RIDER, P.L.C., Roanoke, Virginia, for
Appellant. Thomas Jack Bondurant, Jr., Assistant United States Attor-
ney, Roanoke, Virginia, for Appellee.
2 UNITED STATES v. TAWALBEH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Fahed Tawalbeh was convicted of: (1) conspiracy to damage and
destroy by means of fire a competitor’s store, The Corner Store,
which was used in interstate commerce or in an activity affecting
interstate commerce, 18 U.S.C. § 844(i) (2000), and conspiracy to use
an incendiary destructive device, a Molotov cocktail, 18 U.S.C.
§ 924(c) (2000), in violation of 18 U.S.C. § 371 (2000); (2) mali-
ciously damaging and destroying the competitor’s store involved in
interstate commerce by means of fire, 18 U.S.C. § 844(i); and (3)
using an incendiary destructive device during and in relation to a
crime of violence, 18 U.S.C. § 924(c). Tawalbeh received a sentence
of 431 months. Tawalbeh and his co-conspirators appealed their con-
victions, which were affirmed by this court. United States v. Abed,
No. 98-4637(L), 2000 WL 14190 (4th Cir. Jan. 10, 2000) (unpub-
lished).
In November 2000, Tawalbeh moved to vacate his sentence pursu-
ant to 28 U.S.C. § 2255 (2000). After an evidentiary hearing on one
issue of ineffective assistance of counsel, the district court denied this
motion. In his appeal of that denial, Tawalbeh asserted the same
claims raised in the district court: (1) sufficiency of evidence relating
to arson of the store; (2) sufficiency of the evidence relating to the use
of a Molotov cocktail; (3) whether convictions under both 18 U.S.C.
§ 924(c) and 18 U.S.C. § 844(i) violated the Double Jeopardy Clause;
(4) the jury was subject to outside influences; (5) his sentence vio-
lated Apprendi v. New Jersey, 530 U.S. 466 (2000); (6) the Govern-
ment used perjured testimony; and, (7) twelve claims of ineffective
assistance of counsel.
In an opinion issued on January 8, 2003, we considered the merits
of Tawalbeh’s claims. We determined that those claims did not war-
rant relief and accordingly denied a certificate of appealability and
UNITED STATES v. TAWALBEH 3
dismissed Tawalbeh’s appeal. Tawalbeh petitioned for panel and en
banc rehearing, asserting that we incorrectly analyzed the underlying
merits of his claims before first determining whether he was entitled
to the requested certificate of appealability, as required by Miller-El
v. Cockrell, ___ U.S. ___, 123 S. Ct. 1029 (2003). Upon consider-
ation of his petition, we grant panel rehearing. As no active member
of the court has voted to grant en banc rehearing, it is denied.
To be entitled to a certificate of appealability, Tawalbeh must make
"a substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2) (2000). "Where a district court has rejected the
constitutional claims on the merits, the showing required to satisfy
§ 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong." Slack v. McDaniel, 529
U.S. 473, 484 (2000).
Upon examination of Tawalbeh’s appeal, we conclude that Tawal-
beh has failed to demonstrate that reasonable jurists would find the
district court’s assessment of his constitutional claims debatable or
wrong. Accordingly, we deny a certificate of appealability and dis-
miss the appeal. 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.
PETITION FOR PANEL REHEARING GRANTED,
PETITION FOR EN BANC REHEARING DENIED,
APPEAL DISMISSED