United States v. Wheeler

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                               UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           DISMISSED




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