United States v. Albert Burgess, Jr.

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-7530

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALBERT CHARLES BURGESS, JR.,

Defendant - Appellant.

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-WCM-1)

Submitted: June 29, 2021 Decided: July 1, 2021

Before HARRIS, RICHARDSON, and RUSHING, Circuit Judges.

Dismissed in part, affirmed in part by unpublished per curiam opinion.

Albert Charles Burgess, Jr., Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Albert Charles Burgess, Jr.—a federal inmate convicted in 2009 of possessing and

receiving visual materials shipped in interstate commerce via computer depicting a minor

engaged in sexually explicit conduct—seeks to appeal the district court’s order denying his

Fed. R. Civ. P. 60(b)(4) motion for relief from the court’s prior denying relief on his

28 U.S.C. § 2255 motion and appeals from the district court’s order denying his motion for

a new trial under Fed. R. Crim. P. 33.

The district court’s order denying Burgess’ Rule 60(b)(4) motion is not appealable

unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.

§ 2253(c)(1)(B). A certificate of appealability will not issue absent “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court

denies relief on the merits, a prisoner satisfies this standard by demonstrating that

reasonable jurists could find the district court’s assessment of the constitutional claims

debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing

Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Burgess has not made

the requisite showing. The claims Burgess raised in his Rule 60(b) motion challenged the

validity of his convictions, and, thus, the motion should have been construed as a

successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005); United

2 States v. McRae, 793 F.3d 392, 397-99 (4th Cir. 2015). Absent prefiling authorization

from this court, the district court lacked jurisdiction to entertain Burgess’ successive § 2255

motion. See 28 U.S.C. §§ 2244(b)(3), 2255(h). Accordingly, we deny a certificate of

appealability and dismiss the appeal in part.

Turning to the district court’s order denying Burgess’ motion for a new trial, under

Rule 33, Burgess had “3 years after the verdict or finding of guilty” to file the motion.

Fed. R. Crim. P. 33(b)(1). The jury found Burgess guilty on November 18, 2009. Burgess

filed his new trial motion in August 2020 and has not presented any circumstances

suggesting his filing was delayed by “excusable neglect.” Fed. R. Crim. P. 45(b)(1)(B).

The district court thus did not abuse its discretion in denying the untimely motion for a new

trial, see United States v. Wolf, 860 F.3d 175, 189 (4th Cir. 2017) (stating standard of

review), and we affirm the denial order on this basis, United States v. Burgess, No.

1:09-cr-00017-GCM-WCM-1 (W.D.N.C. Sept. 2, 2020).

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 IN PART, AFFIRMED IN PART