US v. Gardner, No. 06-7041 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7041 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DUSHAWN LEVERT GARDNER, a/k/a Michael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 Raleigh. Malcolm J. Howard, Senior District Judge. (4:95-cr-00041-H-5; 4:03-cv-204-H) Submitted: November 6, 2006 Decided: November 20, 2006 Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges. Dismissed by unpublished per curiam opinion. Dushawn Levert Gardner, Appellant Pro Se. Steve R. Matheny, Christine Blaise Hamilton, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Dushawn Levert Gardner seeks to appeal the district court s order denying relief on his 28 U.S.C. § 2255 (2000) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. (2000). 28 U.S.C. § 2253(c)(1) A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. U.S.C. § 2253(c)(2) (2000). demonstrating that 28 A prisoner satisfies this standard by 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 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (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 - 2 -

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