U.S.v.Gardner

United States Court of Appeals, Fourth CircuitApr 2, 2009
320 Fed. Appx. 155 (4th Cir. 2009)

No. 08-7678.

Submitted: February 19, 2009.

Decided: April 2, 2009.

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).

Dushawn Levert Gardner, Appellant Pro Se. Steve R. Matheny, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Before MOTZ, TRAXLER, and KING, Circuit Judges.

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.


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 order denying relief on his 28 U.S.C. § 2255 (2006) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appeal-ability will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). 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 the court and argument would not aid the decisional process.

DISMISSED.