UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7660
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: February 19, 2016 Decided: March 2, 2016
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.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, 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Unpublished opinions are not binding precedent in this circuit.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., seeks to appeal from the district
court’s order denying his motion to dismiss for lack of
jurisdiction. We conclude that Burgess’ motion was in substance
a successive 28 U.S.C. § 2255 (2012) motion.
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. The district court
lacked jurisdiction to deny § 2255 relief on the merits because
Burgess’ motion to dismiss challenged the validity of his
2
convictions 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 a successive § 2255
motion. See 28 U.S.C. § 2244(b)(3) (2012).
Accordingly, we deny a certificate of appealability and
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
3