United States v. Albert Burgess, Jr.

Opinion

USCA4 Appeal: 22-7224 Doc: 9 Filed: 02/22/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-7224

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: February 16, 2023 Decided: February 22, 2023

Before GREGORY, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Albert Charles Burgess, Jr., Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-7224 Doc: 9 Filed: 02/22/2023 Pg: 2 of 3

PER CURIAM:

Albert Charles Burgess, Jr., has noted an appeal from the district court’s order

denying his motion to correct sentence. Burgess’ motion was, in substance, a successive

28 U.S.C. § 2255 motion. The denial of this motion is not appealable in the absence of a

certificate of appealability. 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, 580 U.S. 100, 115-17

(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)).

Burgess’ motion challenged the validity of his conviction and sentence and should

have been construed as a successive § 2255 motion. ∗ See Gonzalez v. Crosby, 545 U.S.

524, 531-32 (2005); United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003). In the

absence of pre-filing authorization from this Court, the district court lacked jurisdiction to

hear Burgess’ successive § 2255 motion. See 28 U.S.C. § 2244(b)(3). Accordingly, we

deny a certificate of appealability and dismiss the appeal.

∗ The district court denied relief on Burgess’ initial § 2255 motion on the merits in 2015.

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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