United States v. Maxwell

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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