United States v. Maxwell , 358 F. App'x 436 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-7321
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    LLOYD GEORGE MAXWELL,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    Maryland, at Baltimore.     Marvin J. Garbis, Senior District
    Judge. (1:87-cr-00371-MJG-2; 1:09-cv-00114-MJG)
    Submitted:    December 17, 2009            Decided:   December 29, 2009
    Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Lloyd George Maxwell, Appellant Pro Se. Richard Charles Kay,
    Assistant United States Attorney, Baltimore, Maryland, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Lloyd    George    Maxwell            seeks    to     appeal     the    district
    court’s order denying his Fed. R. Civ. P. 60(b) motion.                                  Because
    that motion directly attacked his conviction, the motion should
    have    been    characterized         as    a     successive         and   unauthorized         
    28 U.S.C.A. § 2255
     (West Supp. 2009) motion under United States v.
    Winestock, 
    340 F.3d 200
    , 207 (4th Cir. 2003).
    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) (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).         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.                      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 record and conclude that Maxwell has
    not     made    the    requisite       showing.              Accordingly,         we     deny    a
    certificate of appealability and dismiss the appeal.
    2
    To   the   extent   that   Maxwell’s   notice   of   appeal   and
    informal brief could be construed as a motion for authorization
    to file a successive § 2255 motion, we deny such authorization.
    See Winestock, 
    340 F.3d at 208
    .          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
    

Document Info

Docket Number: 09-7321

Citation Numbers: 358 F. App'x 436

Filed Date: 12/29/2009

Precedential Status: Non-Precedential

Modified Date: 4/18/2021