US v. Albert Burgess, Jr.


UNPUBLISHED PER CURIAM OPINION filed. A certificate of appealability is denied. Originating case number: 1:09-cr-00017-GCM-DLH-1, 1:16-cv-00377-FDW. Copies to all parties and the district court/agency [1000044414]. Mailed to: Albert Charles Burgess, Jr. [16-7733]

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Appeal: 16-7733 Doc: 6 Filed: 03/17/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7733 ALBERT C. BURGESS, JR., Petitioner - Appellant, v. UNITED STATES OF AMERICA, Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Frank D. Whitney, Chief District Judge. (1:09-cr-00017-GCM-DLH-1; 1:16-cv-00377FDW) Submitted: March 14, 2017 Before FLOYD and Circuit Judge. HARRIS, Decided: Circuit Judges, and March 17, 2017 DAVIS, Senior Dismissed by unpublished per curiam opinion. Albert Charles Burgess, Jr., Appellant Pro Se. Kimlani M. Ford, Cortney Randall, Edward R. Ryan, Assistant United States Attorneys, Charlotte, North Carolina, Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7733 Doc: 6 Filed: 03/17/2017 Pg: 2 of 3 PER CURIAM: Albert Charles Burgess, Jr., seeks to appeal the district court’s order dismissing (2012) motion. * justice or 28 U.S.C. as successive his 28 U.S.C. § 2255 The order is not appealable unless a circuit judge issues § 2253(c)(1)(B) a certificate (2012). of A appealability. certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” (2012). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district that 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). denies relief demonstrate both on procedural that the When the district court grounds, dispositive the prisoner procedural must 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. Burgess filed a petition for a writ of habeas corpus under 28 U.S.C. § 1651 (2012). The district court construed the petition as a motion under 28 U.S.C. § 2255 challenging the 2010 criminal judgment entered following Burgess’ convictions under 18 U.S.C. § 2252(a) (2012). Burgess has not challenged that ruling on appeal. 2 Appeal: 16-7733 Doc: 6 Filed: 03/17/2017 Pg: 3 of 3 We have independently reviewed the record and conclude that Burgess has not made the requisite showing. deny a certificate We dispense with contentions are of oral appealability argument adequately and because presented in Accordingly, we dismiss the the facts the materials appeal. and legal before this court and argument would not aid the decisional process. DISMISSED 3

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