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UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-7272 Doc: 7 Filed: 02/21/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7272 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KENNETH LEE GARDNER, Defendant -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 Decided: DUNCAN, February 21, 2017 Circuit Judge, and Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7272 Doc: 7 Filed: 02/21/2017 Pg: 2 of 3 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 Appeal: 16-7272 Doc: 7 contentions Filed: 02/21/2017 are adequately Pg: 3 of 3 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3

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