Gardner v. Jackson

                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-7633



JOSEPH LEE GARDNER,

                                              Petitioner - Appellant,

          versus


RICK JACKSON, Superintendent,

                                               Respondent - Appellee,

          and


STATE   OF  NORTH     CAROLINA   DEPARTMENT    OF
CORRECTION,

                                                           Respondent.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:05-hc-00332-BO)


Submitted:   January 22, 2007              Decided:   February 1, 2007


Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Joseph Lee Gardner, Appellant Pro Se. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

           Joseph Lee Gardner seeks to appeal the district court’s

order denying relief on his 28 U.S.C. § 2254 (2000) petition.              The

order is not appealable unless a circuit justice or judge issues a

certificate of appealability.        28 U.S.C. § 2253(c)(1) (2000).          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)   (2000).   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 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




                                 - 3 -