United States v. Barkley Gardner

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6059

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 Greenville. Malcolm J. Howard, Senior District Judge. (4:95-cr-00041-H-8)

Submitted: June 28, 2021 Decided: July 2, 2021

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

Dismissed by unpublished per curiam opinion.

Barkley Gardner, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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