US v. Max Plumlee

Filing 920100625

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6223 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MAX ORVEL PLUMLEE, Defendant Appellant.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 KING, Circuit Judges, and HAMILTON, Senior Dismissed by unpublished per curiam opinion.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 Kevin Michael Comstock, Norfolk, Virginia, for Unpublished opinions are not binding precedent in this circuit.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

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