United States v. Albert Burgess

687 F. App'x 260

Opinion

Dismissed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Albert Charles Burgess, Jr., seeks to appeal the district court’s order denying relief on his motion to amend the district court’s amended criminal judgment. * We conclude that Burgess’ motion was in substance a 28 U.S.C. § 2255 (2012) motion challenging- the amended criminal judgment.

The district court’s order is not appeal-able unless a circuit justice or judge issues a certifícate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of ap-pealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). 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, 120 S.Ct. 1595.

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. 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

* Burgess noted an appeal from the district court’s November 16, 2016 orders denying his motion to amend, his motion to reconsider, and his request for a subpoena duces tecum but confines his appeal to the denial of his motion to amend the amended criminal judgment.