United States District Court, W.D. North Carolina, Asheville Division
ALBERT C. BURRESS, JR.,  Petitioner,
UNITED STATES OF AMERICA, Respondent.
C. MULLEN UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Petitioner's
Motion for Sanctions Motion to Compel Discovery Motion to
Charge Perjury and Conspiracy, which was docketed in the
instant civil case as a Motion to Vacate, Set Aside or
Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).
was found guilty by a jury of possession of materials
involving the exploitation of minors and knowingly receiving
visual depictions of minors by computer which involved
sexually explicit content, for which the Court sentenced him
to a total of 292 months' imprisonment, and ordered
restitution. (1:09-cr-17, Doc. Nos. 1, 185). The Fourth
Circuit affirmed the conviction and sentenced but remanded
for reconsideration of the restitution award. United
States v. Burgess, 684 F.3d 445 (4th Cir.
2012). The United States Supreme Court denied certiorari.
United States v. Burgess, 133 S.Ct. 490 (2012).
filed a § 2255 Motion to Vacate on November 15, 2012,
case number 1:12-cv-375, that the Court denied and dismissed.
Burgess v. United States, 2015 WL 847443 (W.D. N.C.
Feb. 26, 2015). The Fourth Circuit denied a certificate of
appealability and dismissed his appeal. United States v.
Burgess, 604 Fed.Appx. 268 (4th Cir. 2015).
the pendency of the § 2255 appeal and subsequent to its
denial, Petitioner filed a series of post-conviction
petitions in this Court pursuant to 28 U.S.C. § 1651.
See 1:16-cv-410-GCM; 1:16-cv-377-FDW;
1:15-cv-179-FDW; 1:15-cv-156-FDW; 1:15-cv-135-FDW;
1:14-cv-47-FDW; 1:13-cv-340-MR. In each, Petitioner
challenged the validity of the Judgment in the 2009 criminal
case. The Court dismissed or denied each petition and
explained that prisoners are precluded from proceeding under
§ 1651 when their claims are cognizable under §
2255. See Id.
filed the instant petition on May 28, 2018, arguing that he
was convicted based on perjured testimony and discovery
violations as a result of the Government's intentional
effort to imprison him for the rest of his life. He attaches
to the petition allegedly exculpatory evidence that he
obtained through the Freedom of Information Act, and he
requests an extension of time to submit additional documents.
(Doc. No. 1 at 10). He seeks an evidentiary hearing,
discovery, the institution of criminal contempt proceedings
against the two Assistant United States Attorneys who
prosecuted his criminal case, release from custody, and any
other relief the Court deems just and proper.
to 28 U.S.C. § 2255, a prisoner in federal custody may
move the court which imposed his sentence to vacate, set
aside, or correct the sentence if it was imposed in violation
of federal constitutional or statutory law, was imposed
without proper jurisdiction, is in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack. 28 U.S.C. § 2255(a). However, “[a] second
or successive motion must be certified...by a panel of the
appropriate court of appeals to contain” either:
newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
28 U.S.C. § 2255(h).
court of appeals may authorize the filing of a second or
successive application only if it determines that the
application makes a prima facie showing that the application
satisfies the requirements of this subsection.” 28
U.S.C. § 2244(b)(3)(C). In the absence of pre-filing
authorization, a district court lacks jurisdiction to
consider an application containing abusive or repetitive
claims. United States v. Winestock, 340 F.3d 200,
205 (4th Cir. 2003).
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the argument presented by the Petitioner can be