United States v. Dushawn Gardner , 678 F. App'x 141 ( 2017 )

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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. May-
Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dushawn Levert Gardner seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motion for
reconsideration of the district court’s prior orders 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 of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012).
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). 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. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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