UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7506
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MAX ORVEL PLUMLEE,
Defendant - Appellant.
No. 04-7507
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MAX ORVEL PLUMLEE,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CR-94-2; CA-00-83)
Submitted: January 27, 2005 Decided: February 3, 2005
Before LUTTIG and DUNCAN, 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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Max Orvel Plumlee, a federal prisoner, seeks to appeal
the district court’s orders denying as untimely his motion filed
pursuant to 28 U.S.C. § 2255 (2000), and dismissing for lack of
jurisdiction his motion filed under Fed. R. Civ. P. 60(b), as a
second or successive motion under 28 U.S.C. § 2255 (2000). The
orders are not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); see
Reid v. Angelone, 369 F.3d 363, 368-69, 374 n.7 (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) (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, 336-38 (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 Plumlee has not made the requisite
showing. Accordingly, we deny a certificate of appealability and
dismiss the appeal.
Additionally, we construe Plumlee’s notice of appeal and
informal brief on appeal as an application to file a second or
successive § 2255 motion. See United States v. Winestock, 340 F.3d
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200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496 (2003). In order
to obtain authorization to file a successive § 2255 motion, a
prisoner must assert claims based on either: (1) a new rule of
constitutional law, previously unavailable, made retroactive by the
Supreme Court to cases on collateral review; or (2) newly
discovered evidence that would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense. 28 U.S.C. §§ 2244(b)
(2000); 28 U.S.C. § 2255 ¶ 8. Plumlee’s claims do not satisfy
either of these conditions. Therefore, we decline authorization to
Plumlee to file a successive § 2255 motion. 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
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