US v. Albert Burgess, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 1:09-cr-00017-GCM-DLH-1 Copies to all parties and the district court/agency. [999804510]. Mailed to: Albert Charles Burgess, Jr.. [16-6253]

Appeal: 16-6253

Doc: 9

Filed: 04/26/2016

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6253

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERT CHARLES BURGESS, JR.,
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:

April 21, 2016

Decided:

April 26, 2016

Before WILKINSON, KING, and KEENAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam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, Amy Elizabeth Ray,
Edward R. Ryan, Assistant United States Attorneys, Charlotte,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-6253

Doc: 9

Filed: 04/26/2016

Pg: 2 of 4

PER CURIAM:
Albert

Charles

Burgess,

Jr.,

notes

an

appeal

from

the

district court’s order denying his motion for unredacted trial
transcripts and denying his motion to set aside conviction and
sentence.
We conclude that Burgess’ motion to set aside conviction
and

sentence

(2012)

was

substance

a

The

motion.

in

portion

of

successive
the

28

district

U.S.C.
court’s

§ 2255
order

denying this motion is not appealable unless a circuit justice
or

judge

issues

a

certificate

§ 2253(c)(1)(B) (2012).
issue

absent

“a

appealability.

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

of

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

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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.
529 U.S. at 484-85.

2

Slack,

Appeal: 16-6253

Doc: 9

Filed: 04/26/2016

Pg: 3 of 4

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

convictions

and

§ 2255 motion.

to

set

should

aside
have

challenged
been

the

validity

construed

as

a

of

his

successive

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

successive § 2255 motion.

lacked

jurisdiction

to

hear

a

See 28 U.S.C. § 2244(b)(3) (2012).

We therefore deny a certificate of appealability and dismiss
this portion of the appeal.
With respect to the portion of the district court’s order
denying Burgess’ motion for trial transcripts, we have reviewed
the record and find no reversible error.
request

did

not

Superintendent,

establish
Va.

State

the

requisite

Farm,

460

F.2d

Burgess’ transcript
need
150,

under
152

Jones
(4th

v.

Cir.

1972) (noting that “[i]t is settled in this circuit that ‘an
indigent is not entitled to a transcript at government expense
without a showing of the need, merely to comb the record in the
hope

of

discovering

some

flaw.’”

(quoting

United

States

v.

Glass, 317 F.2d 200, 202 (4th Cir. 1963))).

Accordingly, we

affirm

order.

this

portion

of

the

district

court’s

United

States v. Burgess, No. 1:09-cr-00017-GCM-DLH-1 (W.D.N.C. Feb. 8,
3

Appeal: 16-6253

Doc: 9

2016).
legal
before

Filed: 04/26/2016

Pg: 4 of 4

We dispense with oral argument because the facts and
contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

DISMISSED IN PART;
AFFIRMED IN PART

4