UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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