United States v. Bernard Gibson, Sr. , 459 F. App'x 266 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6963
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)
Submitted: December 20, 2011 Decided: December 22, 2011
Before MOTZ, DUNCAN, and DIAZ, 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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 denying relief on his self-styled “Petition for
Relief From Judgment Pursuant to Federal Rule of Civil Procedure
60(d) and Rule 60(b)[.]” Gibson has unsuccessfully challenged
his sentence numerous times, including in a true 28 U.S.C.A.
§ 2255 (West Supp. 2011) motion. Because Gibson’s motion was a
successive and unauthorized § 2255 motion, see 28 U.S.C.
§ 2255(h); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997), the
district court was obligated to dismiss the motion, see United
States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003), and the
order is 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). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
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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. Slack, 529 U.S.
at 484-85. 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. 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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