US v. Albert Burge


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00017-GCM-DLH-1 Copies to all parties and the district court/agency. [999766277]. Mailed to: Burgess. [15-7660]

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Appeal: 15-7660 Doc: 11 Filed: 03/02/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7660 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALBERT CHARLES BURGESS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Graham C. Mullen, Senior District Judge. (1:09-cr-00017-GCM-DLH-1) Submitted: February 19, 2016 Decided: March 2, 2016 Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Albert Charles Burgess, Jr., Appellant Pro Se. Thomas Richard Ascik, Assistant United States Attorney, Asheville, North Carolina, Kimlani M. Ford, Cortney Randall, Edward R. Ryan, Assistant United States Attorneys, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-7660 Doc: 11 Filed: 03/02/2016 Pg: 2 of 3 PER CURIAM: Albert Charles Burgess, Jr., seeks to appeal from the district court’s order jurisdiction. denying his motion to dismiss for lack of We conclude that Burgess’ motion was in substance a successive 28 U.S.C. § 2255 (2012) motion. The district court’s order is not appealable unless a circuit justice or judge issues a certificate of appealability. § 2253(c)(1)(B) (2012). issue absent “a A certificate of appealability will not substantial constitutional right.” 28 U.S.C. showing of the denial 28 U.S.C. § 2253(c)(2) (2012). of a 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 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 Burgess has not made the requisite showing. The district court lacked jurisdiction to deny § 2255 relief on the merits because Burgess’ motion to dismiss challenged 2 the validity of his Appeal: 15-7660 Doc: 11 Filed: 03/02/2016 Pg: 3 of 3 convictions and should have been construed as a successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005); United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003). In the absence of pre-filing authorization from this court, the district court lacked jurisdiction to hear a successive § 2255 motion. See 28 U.S.C. § 2244(b)(3) (2012). Accordingly, we dismiss the appeal. facts and materials legal before deny a certificate of appealability and We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. DISMISSED 3

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