US v. Gerald Wheeler

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 3:06-cr-00363-RJC-3,3:10-cv-00289-RJC Copies to all parties and the district court/agency. [998976557]. Mailed to: Gerald Wheeler. [11-6643]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6643

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERALD ADRIAN WHEELER, a/k/a Bay-Bay,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., Chief District Judge. (3:06-cr-00363-RJC-3; 3:10-cv-00289RJC)

Submitted:

October 26, 2012

Decided:

November 7, 2012

Before MOTZ, KING, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Gerald Adrian Wheeler, Appellant Pro Se.
C. Nicks Williams,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gerald

Adrian

Wheeler

seeks

to

appeal

the

district

court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp.

2012)

motion.

The

order

is

not

appealable

unless

a

circuit justice or judge issues a certificate of appealability.
28

U.S.C.

§ 2253(c)(1)(B)

(2006).

A

certificate

of

appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2006).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner

satisfies

this

jurists

would

reasonable

standard
find

by

that

demonstrating

the

district

that

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).
denies

relief

demonstrate

both

on

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

ruling

must
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 and dismiss the appeal.
We note that Wheeler’s claim for retroactive application of the
Supreme Court’s opinion in Carachuri-Rosendo v. Holder, 130 S.
Ct. 2577 (2010), and our opinion in United States v. Simmons,
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649 F.3d 237, 241-45 (4th Cir. 2011) (en banc), fails in light
of our recent opinion in United States v. Powell, 691 F.3d 554
(4th Cir. 2012).
facts

and

materials

legal
before

We dispense with oral argument because the
contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
DISMISSED

3