US v. Dushawn Gardner, No. 08-7678 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7678 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DUSHAWN LEVERT GARDNER, Michael Archer, a/k/a Black, a/k/a Shawn, a/k/a 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) Submitted: February 19, 2009 Decided: April 2, 2009 Before MOTZ, TRAXLER, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Dushawn Levert Gardner, Appellant Pro Se. Steve R. Matheny, 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 Unpublished opinions are not binding precedent in this circuit.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 order denying relief on his 28 U.S.C. § 2255 (2006) motion. unless a circuit appealability. 369 F.3d justice or The order is not appealable judge issues a certificate of 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). 28 U.S.C. § 2253(c)(2) 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 (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 certificate dispense of with requisite showing. appealability oral argument and Accordingly, dismiss because the the we deny appeal. facts and a We 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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