US v. Albert Burgess, Jr., No. 16-6253 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6253 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALBERT CHARLES BURGESS, JR., Defendant -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-DLH-1) Submitted: April 21, 2016 Decided: April 26, 2016 Before WILKINSON, KING, and KEENAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Albert Charles Burgess, Jr., Appellant Pro Se. Thomas Richard Ascik, Assistant United States Attorney, Asheville, North Carolina, Kimlani M. Ford, Cortney Randall, Amy Elizabeth Ray, Edward R. Ryan, Assistant United States Attorneys, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Albert Charles Burgess, Jr., notes an appeal from the district court’s order denying his motion for unredacted trial transcripts and denying his motion to set aside conviction and sentence. We conclude that Burgess’ motion to set aside conviction and sentence (2012) was substance a The motion. in portion of successive the 28 district U.S.C. court’s § 2255 order denying this motion is not appealable unless a circuit justice or judge issues a certificate § 2253(c)(1)(B) (2012). issue absent “a appealability. 28 U.S.C. A certificate of appealability will not substantial constitutional right.” of showing of the denial 28 U.S.C. § 2253(c)(2) (2012). of a 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. 529 U.S. at 484-85. 2 Slack, We have independently reviewed the record and conclude that Burgess has not made the requisite showing. The district court lacked jurisdiction to deny § 2255 relief on the merits because Burgess’ motion convictions and § 2255 motion. to set should aside have challenged been the validity construed as a of his successive 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 successive § 2255 motion. lacked jurisdiction to hear a See 28 U.S.C. § 2244(b)(3) (2012). We therefore deny a certificate of appealability and dismiss this portion of the appeal. With respect to the portion of the district court’s order denying Burgess’ motion for trial transcripts, we have reviewed the record and find no reversible error. request did not Superintendent, establish Va. State the requisite Farm, 460 F.2d Burgess’ transcript need 150, under 152 Jones (4th v. Cir. 1972) (noting that “[i]t is settled in this circuit that ‘an indigent is not entitled to a transcript at government expense without a showing of the need, merely to comb the record in the hope of discovering some flaw.’” (quoting United States v. Glass, 317 F.2d 200, 202 (4th Cir. 1963))). Accordingly, we affirm order. this portion of the district court’s United States v. Burgess, No. 1:09-cr-00017-GCM-DLH-1 (W.D.N.C. Feb. 8, 3 2016). legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED IN PART; AFFIRMED IN PART 4
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