United States v. McLean

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-7031 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus CLEVELAND MCLEAN, JR., a/k/a Junior, a/k/a June, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (CR-90-105) Submitted: October 14, 2004 Decided: October 21, 2004 Before MOTZ, TRAXLER, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Cleveland McLean, Jr., Appellant Pro Se. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Cleveland McLean, Jr., seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2255 (2000) motion as successive. An appeal may not be taken from the final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue for claims addressed by a district court absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that McClean has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, grant McLean’s motions to supplement, deny his motion for default, and dismiss the appeal. To the extent that McLean’s notice of appeal and appellate brief could be construed as a motion for authorization to file a successive § 2255 motion, we deny authorization. See United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003), cert. denied, 124 S. Ct. 496 (2003). We dispense with oral argument - 2 - 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 -