U.S. v. Plumlee

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Max Orvel PLUMLEE…

Court: United States Court of Appeals, Fourth Circuit

Date published: Jun 25, 2010

385 F. App'x 309 (4th Cir. 2010)

Opinion

No. 10-6223.

Submitted: June 17, 2010.

Decided: June 25, 2010.

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).

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

Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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-S5, 120 S.Ct. 1595.

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.