Wheeler v. Keller

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                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-7344


TONY ZAQUECE WHEELER,

                Petitioner – Appellant,

          v.

ALVIN WILLIAM KELLER, JR.,

                Respondent - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.  William L. Osteen,
Jr., District Judge. (1:09-cv-00585-WO-PTS)


Submitted:   March 31, 2011                 Decided:   April 5, 2011


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Tony Zaquece Wheeler, Appellant Pro Se. Clarence Joe DelForge,
III, Assistant Attorney General, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Tony    Zaquece       Wheeler        seeks       to    appeal         the    district

court’s    order      accepting      the      recommendation              of    the    magistrate

judge    and     denying        relief   on     his       28    U.S.C.          §    2254      (2006)

petition.       The order is not appealable unless a circuit justice

or    judge    issues      a    certificate        of   appealability.                    28   U.S.C.

§ 2253(c)(1) (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 petition 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 dispense with oral argument because the facts

and legal contentions are adequately presented in the materials



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED




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