US v. Barkley Gardner

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:95-cr-00041-H-8,4:16-cv-00069-H Copies to all parties and the district court/agency. [999949480]. Mailed to: Barkley Gardner UNITED STATES PENITENTIARY P. O. Box 1000 Lewisburg, PA 17837-0000. [16-6772]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6772

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 Greenville.
Malcolm J. Howard,
Senior District Judge. (4:95-cr-00041-H-8; 4:16-cv-00069-H)

Submitted:

October 13, 2016

Decided:

October 18, 2016

Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Barkley Gardner, Appellant Pro Se. Joshua Bryan Royster, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Barkley Gardner seeks to appeal the district court’s order
construing his Fed. R. Civ. P. 60(b) motion seeking relief from
the criminal judgment as a successive 28 U.S.C. § 2255 (2012)
motion and denying it for lack of authorization and denying his 28
U.S.C. § 2255 motion for lack of authorization.
§ 2255(h).
or

judge

The order is not appealable unless a circuit justice
issues

a

certificate

§ 2253(c)(1)(B) (2012).
issue

See 28 U.S.C.

absent

“a

appealability.

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

of

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2012).

of

a

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, 529 U.S. 473, 484

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (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, 529 U.S. at 484-

85.
We have independently reviewed the record and conclude that
Gardner has not made the requisite showing.

Accordingly, we deny

a certificate of appealability and dismiss the appeal.
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Additionally, we construe Gardner’s notice of appeal and
informal brief as an application to file a second or successive
§ 2255 motion.
Cir. 2003).

United States v. Winestock, 340 F.3d 200, 208 (4th

In order to obtain authorization to file a successive

§ 2255 motion, a prisoner must assert claims based on either:
(1) newly discovered evidence that . . . would be
sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that
was previously unavailable.
28 U.S.C. § 2255(h).
these

criteria.

Gardner’s claims do not satisfy either of

Therefore,

we

deny

authorization

to

file

a

successive § 2255 motion.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.

DISMISSED

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