US v. David Wheeler

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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record.
legal
before

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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

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