US v. David Wheeler


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for transcript at government expense [999631056-2]; denying Motion to appoint/assign counsel [999630666-2], updating certificate of appealability status Originating case number: 2:11-cr-00036-MSD-FBS-3,2:14-cv-00029-MSD Copies to all parties and the district court/agency. [999684710]. Mailed to: D. Wheeler. [15-7026]

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Appeal: 15-7026 Doc: 12 Filed: 10/23/2015 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7026 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID A. WHEELER, a/k/a Sampson, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:11-cr-00036-MSD-FBS-3; 2:14-cv-00029-MSD) Submitted: October 20, 2015 Decided: October 23, 2015 Before MOTZ, KEENAN, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. David A. Wheeler, Appellant Pro Se. Sherrie Scott Capotosto, Melissa Elaine O’Boyle, Assistant United States Attorneys, V. Kathleen Dougherty, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia Unpublished opinions are not binding precedent in this circuit. Appeal: 15-7026 Doc: 12 Filed: 10/23/2015 Pg: 2 of 3 PER CURIAM: David A. Wheeler seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. A certificate of 28 U.S.C. § 2253(c)(1)(B) (2012). appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district merits, that court’s debatable or a When the district court denies prisoner reasonable assessment wrong. satisfies jurists would of the v. McDaniel, Slack this standard find U.S. that 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 claim of the denial of a constitutional right. a debatable 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, deny Wheeler’s motion to appoint counsel, and dismiss the appeal. We further deny Wheeler’s motion for transcripts at the Government’s expense as moot because the relevant trial transcripts are already in the 2 Appeal: 15-7026 Doc: 12 record. legal before Filed: 10/23/2015 Pg: 3 of 3 We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3

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