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United States v. Dushawn Gardner, 16-7255 (2017)

Court: Court of Appeals for the Fourth Circuit Number: 16-7255 Visitors: 15
Filed: Feb. 03, 2017
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7255 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DUSHAWN LEVERT GARDNER, a/k/a Michael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: January 31, 2017 Decided: February 3, 2017 Before WILKINSON, KEENAN, and THACKER,
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-7255


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:   January 31, 2017             Decided:   February 3, 2017


Before WILKINSON, KEENAN, and THACKER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Dushawn Levert Gardner, Appellant Pro Se.    Jennifer P. May-
Parker,   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Unpublished opinions are not binding precedent in this circuit.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 dismissing as successive on his 28 U.S.C. § 2255 (2012)

motion.    The order is not appealable unless a circuit justice or

judge     issues     a     certificate     of    appealability.           28     U.S.C.

§ 2253(c)(1)(B) (2012).           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) (2012).                When the

district court denies relief on the merits, a prisoner satisfies

this    standard     by    demonstrating       that   reasonable      jurists     would

find that the district court’s assessment of the constitutional

claims is debatable or wrong.              Slack v. McDaniel, 
529 U.S. 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 a

debatable claim of the denial of a constitutional right.                         
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.                           We

dispense     with        oral   argument    because     the     facts     and     legal




                                           2
contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.

                                                               DISMISSED




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Source:  CourtListener

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