United States of America v. Albert Charles Burgess, Jr.

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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