US v. Albert Burge
Filing
UNPUBLISHED PER CURIAM OPINION filed. A certificate of appealability is denied. Originating case number: 1:09-cr-00017-GCM-DLH-1, 1:16-cv-00410-GCM. Copies to all parties and the district court/agency [1000044442]. Mailed to: Albert Charles Burgess, Jr. [17-6067]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6067
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.
Graham C. Mullen,
Senior District Judge. (1:09-cr-00017-GCM-DLH-1; 1:16-cv-00410GCM)
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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
ruling
must
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). On appeal, Burgess does not dispute
that his filing challenged the 2010 criminal judgment.
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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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