ON PETITION FOR REHEARING

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-7521

GARVEY EUGENE PRUITT,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CR-00-5-V, CA-02-94-5-1-V)

Submitted: April 16, 2003

Decided: May 2, 2003

Before WILKINS, Chief Judge, and MICHAEL and

SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

COUNSEL

Garvey Eugene Pruitt, Appellant Pro Se. Robert Jack Higdon, Jr.,

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North

Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Garvey Eugene Pruitt pled guilty to conspiracy to possess with

intent to distribute cocaine and cocaine base, 21 U.S.C. § 846 (2000).

Pruitt was sentenced to eighty-seven months imprisonment. Pruitt did

not appeal his conviction or his sentence. 

In August 2000, Pruitt moved to vacate his sentence pursuant to 28

U.S.C. § 2255 (2000), alleging his guilty plea was involuntary and he

received ineffective assistance of counsel. Both claims related to the

enhancement of his sentence for possession of a weapon under U. S.

Sentencing Guidelines Manual § 2D1.1(b)(1) (2000). The district

court denied this motion. In his appeal of that denial, Pruitt raised five

issues for the first time on appeal. To the extent he appealed the dismissal of his ineffective assistance of counsel claim, Pruitt asserted

a jury would not have found him guilty of weapons possession. 

In an opinion issued on February 12, 2003, we considered the merits of Pruitt’s claims. We determined that those claims did not merit

relief and accordingly denied a certificate of appealability and dismissed Pruitt’s appeal. Pruitt petitioned for panel rehearing, asserting

that we incorrectly analyzed the underlying merits of his claims rather

than determining whether he was entitled to the requested certificate

of appealability as addressed by Miller-El v. Cockrell, ___ U.S. ___,

123 S. Ct. 1029 (2003). Upon consideration of Pruitt’s petition, we

grant panel rehearing. 

To be entitled to a certificate of appealability, Pruitt must make "a

substantial showing of the denial of a constitutional right." 28 U.S.C.

§ 2253(c)(2) (2000). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c)

is straightforward: The petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional

2 UNITED STATES v. PRUITT
claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484

(2000). 

Upon examination of Pruitt’s appeal, we conclude that Pruitt has

failed to demonstrate that reasonable jurists would find the district

court’s assessment of his constitutional claims debatable or wrong.

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 before the court

and argument would not aid the decisional process.

DISMISSED

UNITED STATES v. PRUITT 3