United States v. Plumlee

376 F. App'x 305

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6209

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PATRICK KIT 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-00002-2; 4:07-cv-00049-RAJ)

Submitted: April 22, 2010 Decided: April 28, 2010

Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Patrick Kit Plumlee, Appellant Pro Se. Kevin Michael Comstock, Assistant United States Attorney, Norfolk, Virginia, Stephen Wiley Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Patrick Kit Plumlee seeks to appeal the district

court’s order construing Plumlee's Fed. R. Crim. P. 35(a) motion

pursuant to 28 U.S.C. § 2255 (West Supp. 2009) and dismissing it

as successive. The order is not appealable unless a circuit

justice or judge issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (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). A

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that any assessment of the

constitutional claims by the district court is debatable or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable. Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). 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