US v. Avery Wheeler, No. 10-7058 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7058 UNITED STATES OF AMERICA, Plaintiff Appellee, v. AVERY WHEELER, Defendant Appellant.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 Before KING and Circuit Judge. SHEDD, Decided: Circuit Judges, and October 25, 2010 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Avery Wheeler, Appellant Assistant United States Appellee. Pro Se. Attorney, Laura Marie Everhart, Norfolk, Virginia, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Avery orders denying Wheeler relief seeks on to appeal 28 U.S.C.A. his the district § 2255 court s (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). issue absent a A certificate of appealability will not substantial constitutional right. showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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. 484 (2000); (2003). see Miller-El Slack v. McDaniel, 529 U.S. 473, v. Cockrell, 537 U.S. 322, 336-38 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. 529 U.S. at 484-85. Slack, 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 dispense in with forma pauperis, oral argument and dismiss because 2 the the appeal. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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