US v. Avery Wheeler
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 2:05-cr-00113-WDK-JEB-1,2:05-mj-00464-MSD Copies to all parties and the district court/agency. [998744620]. Mailed to: Avery Wheeler. [11-7031]
Appeal: 11-7031
Document: 13
Date Filed: 12/15/2011
Page: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7031
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-WDK-JEB-1; 2:05-mj-00464-MSD)
Submitted:
December 7, 2011
Before KING and
Circuit Judge.
SHEDD,
Decided:
Circuit
Judges,
and
December 15, 2011
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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
Appeal: 11-7031
Document: 13
Date Filed: 12/15/2011
Page: 2 of 3
PER CURIAM:
Avery
order
Wheeler
denying
his
seeks
Fed.
to
R.
appeal
Civ.
the
P.
district
60(b)
court’s
motion
for
reconsideration of the district court’s order denying relief on
his 28 U.S.C.A. § 2255 (West Supp. 2011) motion.
not
appealable
unless
a
circuit
certificate of appealability.
A certificate
of
justice
or
The order is
judge
issues
a
28 U.S.C. § 2253(c)(1)(B) (2006).
appealability
will
not
issue
absent
“a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2006).
relief
on
the
demonstrating
district
debatable
merits,
that
court’s
or
a
When the district court denies
prisoner
reasonable
assessment
wrong.
Slack
satisfies
jurists
this
would
of
the
v.
McDaniel,
standard
find
that
U.S.
the
claims
constitutional
529
by
is
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
the
484-85.
conclude
that
We
have
Wheeler
independently
has
not
made
reviewed
the
record
requisite
and
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
2
Appeal: 11-7031
before
Document: 13
the
court
Date Filed: 12/15/2011
and
argument
would
Page: 3 of 3
not
aid
the
decisional
process.
DISMISSED
3
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