United States v. Gibson

354 F. App'x 763

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7922

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BERNARD GIBSON, SR., a/k/a Bernard Willis,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:94-cr-00454-PJM-2; 8:09-cv-01913-PJM)

Submitted: December 17, 2009 Decided: December 31, 2009

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Bernard Gibson, Sr., Appellant Pro Se. Sandra Wilkinson, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Bernard Gibson, Sr., seeks to appeal the district

court’s order treating his Fed. R. Civ. P. 60(b) motion as a

successive 28 U.S.C.A. § 2255 (West Supp. 2009) motion, and

dismissing it on that basis. * He also appeals the district

court’s text order denying reconsideration. The orders are not

appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006);

Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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) (2006). A prisoner satisfies this

standard by demonstrating that reasonable jurists would find

that any assessment of the constitutional claims by the district

court is debatable or wrong and that any dispositive procedural

ruling by the district court is likewise debatable. Miller-

El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,

529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th

Cir. 2001). We have independently reviewed the record and

* To the extent Gibson challenges the district court’s alternative finding that, if the motion were construed as a true Rule 60(b) motion, see Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005), he failed to demonstrate extraordinary circumstances, we find that Gibson failed to meet the standard for obtaining a certificate of appealability.

2 conclude that Gibson has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.

Additionally, we construe Gibson’s notice of appeal

and informal brief as an application to file a second or

successive motion under 28 U.S.C.A. § 2255. United States v.

Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to

obtain authorization to file a successive § 2255 motion, a

prisoner must assert claims based on either: (1) newly

discovered evidence, not previously discoverable by due

diligence, that would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the movant guilty of the

offense; or (2) a new rule of constitutional law, previously

unavailable, made retroactive by the Supreme Court to cases on

collateral review. 28 U.S.C.A. § 2255(h). Gibson’s claim does

not satisfy either of these criteria. Therefore, we deny

authorization to file a successive § 2255 motion.

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