United States v. Gardner

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-6502

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BARKLEY GARDNER, a/k/a Big Black,

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-8; 4:03-cv-00060-H)

Submitted: June 6, 2007 Decided: July 2, 2007

Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Barkley Gardner, Appellant Pro Se. Christine Blaise Hamilton,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Barkley Gardner seeks to appeal the district court’s

order and judgment 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. 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 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

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