United States v. Barkley Gardner
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
March 12, 2009
March 17, 2009
Before MOTZ and Circuit Judge.
Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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
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
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
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
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