US v. Kenneth Gardner
Filing
UNPUBLISHED PER CURIAM OPINION filed. A certificate of appealability is denied. Originating case number: 1:09-cr-00063-MR-DCK-1, 1:16-cv-00138-MR. Copies to all parties and the district court/agency [1000026647]. Mailed to: Kenneth Lee Gardner. [16-7272]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7272
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH LEE GARDNER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00063-MR-DCK-1; 1:16-cv-00138-MR)
Submitted:
February 16, 2017
Before GREGORY, Chief Judge,
HAMILTON, Senior Circuit Judge.
Decided:
DUNCAN,
February 21, 2017
Circuit
Judge,
and
Dismissed by unpublished per curiam opinion.
Kenneth Lee Gardner, Appellant Pro Se. Anthony Joseph Enright,
Assistant United States Attorney, Jill Westmoreland Rose, United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kenneth Lee Gardner seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 (2012) motion.
The
order is not appealable unless a circuit justice or judge issues
a
certificate
(2012).
of
appealability.
28
U.S.C.
§ 2253(c)(1)(B)
A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012).
relief
on
the
demonstrating
district
merits,
that
court’s
debatable
or
a
When the district court denies
prisoner
reasonable
assessment
wrong.
satisfies
jurists
would
of
the
v.
McDaniel,
Slack
this
standard
find
U.S.
that
the
claims
constitutional
529
by
is
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
claim of the denial of a constitutional right.
a
debatable
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.
dispense
with
oral
argument
because
2
the
facts
and
We
legal
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contentions
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are
adequately
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presented
in
the
materials
before
this court and argument would not aid the decisional process.
DISMISSED
3
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