US v. Avery Wheeler

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UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed under CJA / IFP [998405562-2]; denying for certificate of appealability. Originating case number: 2:05-cr-00113-DWK-JEB-1 Copies to all parties and the district court/agency. [998452144] [10-7058]

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US v. Avery Wheeler Doc. 0 Case: 10-7058 Document: 14 Date Filed: 10/25/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7058 UNITED STATES OF AMERICA, Plaintiff Appellee, v. AVERY WHEELER, Defendant Appellant.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 SHEDD, Circuit Decided: Judges, and October 25, 2010 HAMILTON, Senior Before KING and Circuit Judge. Dismissed by unpublished per curiam opinion.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 Attorney, Laura Marie Everhart, Norfolk, Virginia, for Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-7058 Document: 14 Date Filed: 10/25/2010 Page: 2 PER CURIAM: Avery orders denying Wheeler relief seeks on his to 28 appeal the district court's Supp. U.S.C.A. 2255 (West 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 showing of the denial of a substantial 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. 484 (2000); see Miller-El v. Slack v. McDaniel, 529 U.S. 473, 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. 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 in forma oral pauperis, argument and dismiss the the appeal. and We legal dispense with because 2 facts Case: 10-7058 Document: 14 Date Filed: 10/25/2010 Page: 3 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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