UNPUBLISHED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

Before KING and

Circuit Judge.

SHEDD,

Decided:

Circuit

Judges,

and

October 25, 2010

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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Avery
orders denying

Wheeler
relief

seeks
on

to

appeal

28

U.S.C.A.

his

the

district

2255

courts

(West

Supp.

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 certificate of appealability will not

substantial

constitutional right.

showing

of

the

denial

28 U.S.C. 2253(c)(2) (2006).

of

When the

district court denies relief on the merits, a prisoner satisfies

this

standard

by

demonstrating

that

reasonable

jurists

would

find that the district courts assessment of the constitutional

claims is debatable or wrong.
484

(2000);

(2003).

see

Miller-El

Slack v. McDaniel, 529 U.S. 473,

v.

Cockrell,

537

U.S.

322,

336-38

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

dispense

in

with

forma

pauperis,

oral

argument

and

dismiss

because
2

the

the

appeal.

facts

and

We
legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

DISMISSED