US v. Max Plumlee

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 4:94-cr-00002-JEB-1 Copies to all parties and the district court/agency. [998727984]. Mailed to: Plumlee. [11-6700]

Appeal: 11-6700

Document: 7

Date Filed: 11/22/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6700

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)

Submitted:

November 17, 2011

Decided:

November 22, 2011

Before KING, DAVIS, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-6700

Document: 7

Date Filed: 11/22/2011

Page: 2 of 3

PER CURIAM:
Max Orvel Plumlee seeks to appeal the district court’s
order treating his self-styled “Motion to Vacate Sentence” as a
successive

28

U.S.C.A.

§ 2255

dismissing it on that basis. *
appealable

unless

a

certificate

of

Supp.

2011)

motion,

and

The district court’s order is not

circuit

certificate of appealability.
A

(West

justice

or

judge

issues

a

28 U.S.C. § 2253(c)(1)(B) (2006).

appealability

will

not

issue

absent

“a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2006).
relief

on

the

demonstrating
district
debatable

merits,
that

court’s
or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

U.S.

that

the

claims

constitutional
529

by

is

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

claim of the denial of a constitutional right.

*

a

debatable

Slack, 529 U.S.

Although the district court also found that Plumlee’s
motion was time-barred under the Antiterrorism and Effective
Death Penalty Act of 1996, because Plumlee’s motion was a
successive § 2255 motion, the district court lacked jurisdiction
to consider the timeliness of Plumlee’s motion.
See United
States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).

2

Appeal: 11-6700

at

Document: 7

484-85.

conclude

We

that

Date Filed: 11/22/2011

have

Plumlee

independently
has

not

made

Page: 3 of 3

reviewed
the

the

record

requisite

and

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