US v. Dushawn Gardner, No. 16-7368 (4th Cir. 2017)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7368 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DUSHAWN LEVERT GARDNER, a/k/a Michael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 Dismissed by unpublished per curiam opinion.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. MayParker, 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 Unpublished opinions are not binding precedent in this circuit.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 reconsideration his of Fed. the R. Civ. district P. court’s 60(b) prior motion orders for denying relief on his 28 U.S.C. § 2255 (2012) motion. The order is not appealable judge unless a circuit certificate of appealability. A certificate of justice or issues a 28 U.S.C. § 2253(c)(1)(B) (2012). appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district merits, that court’s debatable or a When the district court denies prisoner reasonable assessment wrong. satisfies jurists would of the v. McDaniel, Slack this standard find U.S. that the claims constitutional 529 by is 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 claim of the denial of a constitutional right. a debatable 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. dispense with oral argument because 2 the facts and We legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3
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