United States v. Curtis Burston, Jr. , 544 F. App'x 217 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6971
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS BURSTON, JR., a/k/a Black, a/k/a David Smith, a/k/a
Melvin Roberts, a/k/a David Brown,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:04-cr-00371-F-2)
Submitted: October 22, 2013 Decided: October 25, 2013
Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Curtis Burston, Jr., Appellant Pro Se. Kimberly Ann Moore,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Burston, Jr. seeks to appeal the district
court’s orders denying without prejudice his 28 U.S.C.A. § 2255
(West Supp. 2013) motion as successive and denying his motion to
reconsider. The orders are not appealable unless a circuit
justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(B) (2006). 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) (2006). 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 Burston has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Burston’s notice of appeal
and informal brief as an application to file a second or
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successive § 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.A. § 2255(h) (West Supp. 2013). Burston’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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