United States of America v. Dushawn Levert Gardner, a/k/a Black, a/k/a Shawn, a/k/a Michael Archer

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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. James C. Dever III, District Judge. (4:95-cr-00041-D-5)
Submitted: June 23, 2022 Decided: June 28, 2022
Before WYNN and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
Dushawn Levert Gardner, Appellant Pro Se. David A. Bragdon, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dushawn Levert Gardner appeals the district court’s order granting in part and
denying in part his 28 U.S.C. § 2255 motion and granting in part his motion for relief under
§ 404(b) of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Regarding
the denial of relief under § 2255, the district court’s order is not appealable unless a circuit
justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). 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 this portion of the appeal.
Turning to the order granting partial relief on Gardner’s First Step Act motion, we
have reviewed the record and find no reversible error. According, we affirm as to this
portion of the appeal. United States v. Gardner, No. 4:95-cr-00041-D-5 (E.D.N.C. Dec.
13, 2021). We dispense with oral argument because the facts and legal contentions are

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adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART, DISMISSED IN PART

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