United States v. Barkley Gardner

Filing 920090317

Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8356 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BARKLEY GARDNER, a/k/a Big Black, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (4:95-cr-00041-H-8) Submitted: March 12, 2009 Decided: March 17, 2009 Before MOTZ and Circuit Judge. SHEDD, Circuit Judges, and HAMILTON, Senior Dismissed by unpublished per curiam opinion. Barkley Gardner, Appellant Pro Se. Steve R. Matheny, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Barkley Gardner seeks to appeal the district court's order denying his Fed. R. Civ. P. 60(b) motion. Because the motion attacked Gardner's convictions, it was a successive 28 U.S.C.A. 2255 (West Supp. 2008) motion, and the district court did not have authorization to consider the motion. The court's order is not appealable unless a circuit justice or judge issues a certificate of appealability. Reid v. Angelone, of 369 F.3d 28 U.S.C. 2253(c)(1) (2006); 369 (4th not Cir. issue 2004). absent A "a 363, certificate appealability will substantial showing of the denial of a constitutional right." 28 U.S.C. by 2253(c)(2) (2006). that A prisoner satisfies would this find standard demonstrating reasonable jurists that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller- El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have has independently not made reviewed the the record and conclude Gardner requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Gardner's notice of appeal and informal brief as an application 2 to file a second or successive motion under 28 U.S.C.A. 2255. United States v. In order to motion, a Winestock, 340 F.3d 200, 208 (4th Cir. 2003). obtain authorization to file a successive 2255 prisoner must assert claims based on either: (1) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review; or (2) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense. 2008). criteria. 28 U.S.C.A. 2244(b)(2), 2255 (West 2006 & Supp. Gardner's claims do not satisfy either of these Therefore, we deny authorization to file a successive 2255 motion. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional would process. DISMISSED 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?