United States v. Gibson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-7441

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BERNARD GIBSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
94-454-PJM; CA-04-4512-PJM)

Submitted: November 18, 2004 Decided: December 1, 2004

Before LUTTIG and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Bernard Gibson, Appellant Pro Se. Stuart A. Berman, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Bernard Gibson, a federal prisoner, seeks to appeal the

district court’s order construing his motion filed under Fed. R.

Civ. P. 60(b), as a second or successive motion under 28 U.S.C.

§ 2255 (2000), and dismissing it for lack of jurisdiction. The

order is not appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); see

Reid v. Angelone, 369 F.3d 363, 368-69, 374 n.7 (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) (2000). A prisoner satisfies this standard by

demonstrating that reasonable jurists would find that his

constitutional claims are debatable and that any dispositive

procedural rulings by the district court are also debatable or

wrong. See 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 (4th Cir. 2001). We have independently reviewed the

record and 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 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.), cert. denied, 124 S. Ct. 496 (2003). In order

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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 unavailable, made retroactive by the

Supreme Court to cases on collateral review; or (2) newly

discovered evidence that would be sufficient to establish by clear

and convincing evidence that no reasonable factfinder would have

found the movant guilty of the offense. 28 U.S.C. §§ 2244(b)

(2000); 28 U.S.C. § 2255 ¶ 8. Gibson’s claims do not satisfy

either of these conditions. Therefore, we decline to authorize

Gibson 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

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