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United States v. Gardner

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Jul 2, 2021
No. 21-6059 (4th Cir. Jul. 2, 2021)

Opinion

21-6059

07-02-2021

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BARKLEY GARDNER, a/k/a Big Black, Defendant-Appellant.

Barkley Gardner, Appellant Pro Se.


UNPUBLISHED

Submitted: June 28, 2021

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)

Barkley Gardner, Appellant Pro Se.

Before AGEE and DIAZ, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.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)(6) motion for relief from the district court's prior order denying relief on his 28 U.S.C. § 2255 motion and denying the accompanying motions. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). See generally United States v. McRae, 793 F.3d 392, 400 & n.7 (4th Cir. 2015). 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists could find the district court's assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S.Ct. 759, 773-74 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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 also deny Gardner's motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

DISMISSED


Summaries of

United States v. Gardner

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Jul 2, 2021
No. 21-6059 (4th Cir. Jul. 2, 2021)
Case details for

United States v. Gardner

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BARKLEY GARDNER, a/k/a…

Court:UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Date published: Jul 2, 2021

Citations

No. 21-6059 (4th Cir. Jul. 2, 2021)