United States v. Gardner

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-7678

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

DUSHAWN LEVERT GARDNER, a/k/a Black, a/k/a Shawn, a/k/a
Michael Archer,

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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. The 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 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