UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6700
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)
Submitted: November 17, 2011 Decided: November 22, 2011
Before KING, DAVIS, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
order treating his self-styled “Motion to Vacate Sentence” as a
successive 28 U.S.C.A. § 2255 (West Supp. 2011) motion, and
dismissing it on that basis. * The district court’s order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2006).
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.
*
Although the district court also found that Plumlee’s
motion was time-barred under the Antiterrorism and Effective
Death Penalty Act of 1996, because Plumlee’s motion was a
successive § 2255 motion, the district court lacked jurisdiction
to consider the timeliness of Plumlee’s motion. See United
States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
2
at 484-85. 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
3