United States v. Janeiro Burgess ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7164
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JANEIRO BURGESS, a/k/a Key, a/k/a Dirty,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cr-00019-FL-1; 7:13-cv-00277-FL)
Submitted: December 5, 2016 Decided: December 16, 2016
Before GREGORY, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Janeiro Burgess, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Seth Morgan Wood, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Janeiro Burgess seeks to appeal the district court’s order
treating his Fed. R. Civ. P. 60(b) motion as a successive 28
U.S.C. § 2255 (2012) motion and dismissing it on that basis.
The 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 dismiss the appeal.
Additionally, we construe Burgess’s notice of appeal and
informal brief as an application to file a second or successive
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§ 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. § 2255(h). Burgess’s claims do not satisfy either of
these criteria. Therefore, we deny authorization to file a
successive § 2255 motion.
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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