US v. Janeiro Burge


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-7164 Doc: 5 Filed: 12/16/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7164 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JANEIRO BURGESS, a/k/a Key, a/k/a Dirty,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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7164 Doc: 5 Filed: 12/16/2016 Pg: 2 of 3 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 2 Appeal: 16-7164 Doc: 5 Filed: 12/16/2016 § 2255 motion. (4th Cir. 2003). Pg: 3 of 3 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 3

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