UNPUBLISHED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Dismissed in part; affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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 was in substance a successive 28 U.S.C. § 2255
(2012) motion. The portion of the district court’s order
denying this motion 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.
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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 set aside challenged the validity of his
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).
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. Burgess’ transcript
request did not establish the requisite need under Jones v.
Superintendent, Va. State Farm, 460 F.2d 150, 152 (4th 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 this portion of the district court’s order. United
States v. Burgess, No. 1:09-cr-00017-GCM-DLH-1 (W.D.N.C. Feb. 8,
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2016). 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 IN PART;
AFFIRMED IN PART
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