US v. Curtis Burston, Jr., No. 13-6971 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6971 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CURTIS BURSTON, JR., a/k/a Black, a/k/a David Smith, a/k/a Melvin Roberts, a/k/a David Brown, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:04-cr-00371-F-2) Submitted: October 22, 2013 Decided: October 25, 2013 Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Curtis Burston, Jr., Appellant Pro Se. Kimberly Ann Moore, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Curtis Burston, Jr. seeks to appeal the district court s orders denying without prejudice his 28 U.S.C.A. § 2255 (West Supp. 2013) motion as successive and denying his motion to reconsider. justice or The orders are judge issues a not appealable certificate U.S.C. § 2253(c)(1)(B) (2006). of unless a circuit appealability. 28 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) (2006). 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 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 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. We have independently reviewed the record and conclude that Burston has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Burston s notice of appeal and informal brief as an application 2 to file a second or successive § 2255 motion. United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence that . . . would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C.A. § 2255(h) (West Supp. 2013). Burston s claims do not Therefore, satisfy either of these criteria. we deny authorization to file a successive § 2255 motion. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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