                              UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



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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



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