United States v. Gibson , 114 F. App'x 109 ( 2004 )

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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