United States v. Albert Burgess , 687 F. App'x 260 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7666
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERT CHARLES BURGESS,
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 11, 2017 Decided: April 27, 2017
Before GREGORY, Chief Judge, and KEENAN and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Albert Charles Burgess, Appellant Pro Se. Kimlani M. Ford, Cortney Randall, Edward
R. Ryan, Assistant United States Attorneys, Charlotte, North Carolina, Amy Elizabeth
Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Charles Burgess, Jr., seeks to appeal the district court’s order denying relief
on his motion to amend the district court’s amended criminal judgment. * We conclude
that Burgess’ motion was in substance a 28 U.S.C. § 2255 (2012) motion challenging the
amended criminal judgment.
The district court’s order is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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) (2012). 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 (2000); see Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003). 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 Burgess has not
made the requisite showing. Accordingly, we deny a certificate of appealability and
*
Burgess noted an appeal from the district court’s November 16, 2016 orders
denying his motion to amend, his motion to reconsider, and his request for a subpoena
duces tecum but confines his appeal to the denial of his motion to amend the amended
criminal judgment.
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dismiss the appeal. 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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