US v. Dushawn Gardner
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:95-cr-00041-H-5,4:16-cv-00176-H Copies to all parties and the district court/agency. [1000032122]. Mailed to: D Gardner. [16-7368]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7368
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUSHAWN LEVERT GARDNER, a/k/a Michael Archer, a/k/a Black,
a/k/a Shawn,
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-5; 4:16-cv-00176-H)
Submitted:
February 23, 2017
Decided:
February 28, 2017
Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Dushawn Levert Gardner, Appellant Pro Se.
Jennifer P. MayParker,
Assistant
United
States
Attorney,
Raleigh,
North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dushawn Levert Gardner seeks to appeal the district court’s
order
denying
reconsideration
his
of
Fed.
the
R.
Civ.
district
P.
court’s
60(b)
prior
motion
orders
for
denying
relief on his 28 U.S.C. § 2255 (2012) motion.
The order is not
appealable
judge
unless
a
circuit
certificate of appealability.
A
certificate
of
justice
or
issues
a
28 U.S.C. § 2253(c)(1)(B) (2012).
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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