US v. Janeiro Burge

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 7:12-cr-00019-FL-1, 7:13-cv-00277-FL. Copies to all parties and the district court. [999988358]. Mailed to: Appellant. [16-7164]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7164

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JANEIRO BURGESS, a/k/a Key, a/k/a Dirty,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cr-00019-FL-1; 7:13-cv-00277-FL)

Submitted:

December 5, 2016

Decided:

December 16, 2016

Before GREGORY, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Janeiro Burgess, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Seth Morgan Wood, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Janeiro Burgess seeks to appeal the district court’s order
treating his Fed. R. Civ. P. 60(b) motion as a successive 28
U.S.C. § 2255 (2012) motion and dismissing it on that basis.
The order is not appealable unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(B) (2012).
issue

absent

“a

of

appealability.

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

28

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.

Slack,

529 U.S. at 484-85.
We have independently reviewed the record and conclude that
Burgess has not made the requisite showing.

Accordingly, we

deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Burgess’s notice of appeal and
informal brief as an application to file a second or successive
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§ 2255 motion.
(4th Cir. 2003).

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United States v. Winestock, 340 F.3d 200, 208
In order to obtain authorization to file a

successive § 2255 motion, a prisoner must assert claims based on
either:
(1) 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; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255(h).
these

criteria.

Burgess’s claims do not satisfy either of

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

this court and argument would not aid the decisional process.

DISMISSED

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