United States v. Gibson

178 F. App'x 204

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 3, 2006
• Docket: 05-7757
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7757

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LESLIE DIANE GIBSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (CR-96-30056; CA-05-505-7)

Submitted: April 27, 2006 Decided: May 3, 2006

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Leslie Diane Gibson, Appellant Pro Se. Thomas Jack Bondurant, Jr., Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Leslie Diane Gibson seeks to appeal the district court’s

order denying relief on her Fed. R. Civ. P. 60(b) motion, which the

district court properly construed as a successive 28 U.S.C. § 2255

(2000) motion. An appeal may not be taken from the final order in

a § 2255 proceeding unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by

demonstrating that reasonable jurists would find that the district

court’s assessment of her constitutional claims is debatable or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable. See Miller-El v. Cockrell, 537 U.S.

322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have

independently reviewed the record and conclude that Gibson has not

made the requisite showing.

Additionally, we construe Gibson’s notice of appeal and

informal brief on appeal as an application to file a second or

successive § 2255 motion. See United States v. Winestock, 340 F.3d

200, 208 (4th Cir. 2003). To obtain authorization to file a

successive § 2255 motion, a prisoner must assert claims based on

either: (1) a new rule of constitutional law, previously

- 2 - unavailable, made retroactive by the Supreme Court to cases on

collateral review; or (2) newly discovered evidence sufficient to

establish that no reasonable fact finder would have found the

movant guilty. 28 U.S.C. §§ 2244(b)(3)(C), 2255 (2000). Gibson’s

claim does not satisfy either of these conditions. For these

reasons, we deny a certificate of appealability, decline to

authorize Gibson to file a successive § 2255 motion, 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

- 3 -