United States v. Plumlee

385 F. App'x 317

Opinion

UNPUBLISHED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 KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Max Orvel Plumlee, Appellant Pro Se. Kevin Michael Comstock, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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 a certificate of appealability. The district court’s

order dismissing Plumlee’s § 2255 motion is not appealable

unless a circuit justice or judge issues a certificate of

appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone,

369 F.3d 363, 369 (4th Cir. 2004). 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).

When the district court denies relief on the merits, a

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that the district 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). 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 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