UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7530
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-WCM-1)
Submitted: June 29, 2021 Decided: July 1, 2021
Before HARRIS, RICHARDSON, and RUSHING, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam opinion.
Albert Charles Burgess, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Charles Burgess, Jr.—a federal inmate convicted in 2009 of possessing and
receiving visual materials shipped in interstate commerce via computer depicting a minor
engaged in sexually explicit conduct—seeks to appeal the district court’s order denying his
Fed. R. Civ. P. 60(b)(4) motion for relief from the court’s prior denying relief on his
28 U.S.C. § 2255 motion and appeals from the district court’s order denying his motion for
a new trial under Fed. R. Crim. P. 33.
The district court’s order denying Burgess’ Rule 60(b)(4) motion is not appealable
unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(B). 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). When the district court
denies relief on the merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists could find the district court’s assessment of the constitutional claims
debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Burgess has not made
the requisite showing. The claims Burgess raised in his Rule 60(b) motion challenged the
validity of his convictions, and, thus, the motion should have been construed as a
successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005); United
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States v. McRae, 793 F.3d 392, 397-99 (4th Cir. 2015). Absent prefiling authorization
from this court, the district court lacked jurisdiction to entertain Burgess’ successive § 2255
motion. See 28 U.S.C. §§ 2244(b)(3), 2255(h). Accordingly, we deny a certificate of
appealability and dismiss the appeal in part.
Turning to the district court’s order denying Burgess’ motion for a new trial, under
Rule 33, Burgess had “3 years after the verdict or finding of guilty” to file the motion.
Fed. R. Crim. P. 33(b)(1). The jury found Burgess guilty on November 18, 2009. Burgess
filed his new trial motion in August 2020 and has not presented any circumstances
suggesting his filing was delayed by “excusable neglect.” Fed. R. Crim. P. 45(b)(1)(B).
The district court thus did not abuse its discretion in denying the untimely motion for a new
trial, see United States v. Wolf, 860 F.3d 175, 189 (4th Cir. 2017) (stating standard of
review), and we affirm the denial order on this basis, United States v. Burgess, No.
1:09-cr-00017-GCM-WCM-1 (W.D.N.C. Sept. 2, 2020).
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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