UNPUBLISHED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-00289- RJC)

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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

Gerald Adrian Wheeler seeks to appeal the district

court’s order denying relief on his

(West

Supp. 2012) motion. The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.

(c)(1)(B) (2006). A certificate of

appealability will not issue absent “a substantial showing of

the denial of a constitutional right.”

(c)(2)

(2006). When the district court denies relief on the merits, a

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that the district court’s

assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel,

(2000); see Miller-El v.

Cockrell,

(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,

.

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,

(2010), and our opinion in United States v. Simmons,

2

(4th Cir. 2011) (en banc), fails in light

of our recent opinion in United States v. Powell,

(4th Cir. 2012). We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

DISMISSED

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