UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8356
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARKLEY GARDNER, a/k/a Big Black,
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-8)
Submitted: March 12, 2009 Decided: March 17, 2009
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Barkley 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Unpublished opinions are not binding precedent in this circuit.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:
Barkley Gardner seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motion. Because the
motion attacked Gardner’s convictions, it was a successive 28
U.S.C.A. § 2255 (West Supp. 2008) motion, and the district court
did not have authorization to consider the motion. The court’s
order is not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006);
Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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) (2006). 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.
Additionally, we construe Gardner’s notice of appeal
and informal brief as an application to file a second or
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successive motion under 28 U.S.C.A. § 2255. United States v.
Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to
obtain authorization to file a successive § 2255 motion, a
prisoner must assert claims based on either: (1) a new rule of
constitutional law, previously unavailable, made retroactive by
the Supreme Court to cases on collateral review; or (2) newly
discovered evidence, not previously discoverable by due
diligence, that would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the movant guilty of the
offense. 28 U.S.C.A. §§ 2244(b)(2), 2255 (West 2006 & Supp.
2008). Gardner’s claims do not satisfy either of these
criteria. Therefore, we deny authorization to file a successive
§ 2255 motion.
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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