358 FAPPX 436 - 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                              UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




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