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UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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