US v. Max Plumlee

Filing 920100625

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6223

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. MAX ORVEL PLUMLEE, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:94-cr-00002-JEB-1; 4:07-cv-00049-RAJ)

Submitted:

June 17, 2010

Decided:

June 25, 2010

Before MOTZ and Circuit Judge.

KING,

Circuit

Judges,

and

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Max Orvel Plumlee, Appellant Pro Se. Assistant United States Attorney, Appellee.

Kevin Michael Comstock, Norfolk, Virginia, for

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Max Orvel Plumlee seeks to appeal the district court's orders treating his self-styled Fed. R. Crim. P. 35(a) motion as a successive and unauthorized 28 U.S.C.A. § 2255 (West Supp. 2009) motion, and dismissing it on that basis, and declining to issue order unless a certificate of appealability. § 2255 or judge The is a district not court's

dismissing a circuit

Plumlee's justice

motion issues

appealable of

certificate

appealability. 369 F.3d 363,

28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 (4th Cir. 2004). A certificate of

appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2006). When the district court denies relief on the merits, a prisoner reasonable satisfies jurists this would standard find that by the demonstrating district that 28 U.S.C. § 2253(c)(2)

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). denies relief both on procedural the When the district court the prisoner ruling must is

grounds,

demonstrate

that

dispositive

procedural

debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.

2

We have independently reviewed the record and conclude that Plumlee has not made the requisite showing. 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 the court and argument would not aid the decisional process.

DISMISSED

3