675 Fed.Appx. 352 (4th Cir. 2017), 16-7255, United States v. Gardner
|Citation:||675 Fed.Appx. 352|
|Opinion Judge:||PER CURIAM|
|Party Name:||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|
|Attorney:||Dushawn Levert Gardner, Appellant, Pro se. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.|
|Judge Panel:||Before WILKINSON, KEENAN, and THACKER, Circuit Judges.|
|Case Date:||February 03, 2017|
|Court:||United States Courts of Appeals, Court of Appeals for the Fourth Circuit|
Submitted January 31, 2017
Unpublished opinions are not binding precedent in this circuit.(See Federal Rule of Appellate Procedure Rule 32.1)
Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. (4:95-cr-00041-H-5; 4:16-cv-00176-H). Malcolm J. Howard, Senior District Judge.
Dushawn Levert Gardner, Appellant, Pro se.
Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Dushawn Levert Gardner seeks to appeal the district court's order dismissing as successive 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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 contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
To continue readingFREE SIGN UP