UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7182
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK KIT PLUMLEE,
Defendant - Appellant.
No. 07-7250
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 Newport News. Raymond A. Jackson,
District Judge. (4:94-cr-00002-2; 4:07-cv-00049-RAJ; 4:94-cr-
00002-1; 4:07-cv-48)
Submitted: October 11, 2007 Decided: October 18, 2007
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Patrick Kit Plumlee, Max Orvel Plumlee, Appellants Pro Se. Stephen
Wiley Miller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia; Kevin Michael Comstock, Sherrie Scott Capotosto,
Assistant United States Attorneys, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Patrick Kit Plumlee and
Max Orvel Plumlee seek to appeal the district court’s orders
treating their Fed. R. Civ. P. 60(b) motions as successive 28
U.S.C. § 2255 (2000) motions, and dismissing them on that basis.
The orders are not appealable unless a circuit justice or judge
issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)
(2000); 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) (2000). 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. 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, 683-84 (4th Cir. 2001).
We have independently reviewed the records and conclude that the
Plumlees have not made the requisite showing. Accordingly, we deny
a certificate of appealability and dismiss the appeals.
Additionally, we construe the Plumlees’ notices of appeal
and informal briefs as applications to file second or successive
motions under 28 U.S.C. § 2255 (2000). See United States v.
Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to obtain
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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,
not previously discoverable by due diligence, that would be
sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have found
the movant guilty of the offense. See 28 U.S.C. §§ 2244(b)(2),
2255 (2000). The Plumlees’ claims do not satisfy either of these
criteria. Therefore, we deny authorization to file successive
§ 2255 motions.
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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