Opinion
No. CIV S-02-1377 FCD GGH P.
August 23, 2007
ORDER
On February 6, 2007, the Ninth Circuit Court of Appeals remanded this matter to this court for the purpose of granting or denying a certificate of appealability as to the December 26, 2006, order disregarding petitioner's December 11, 2006, request for relief from judgment pursuant to Fed.R.Civ.P. 60(b). The order from the Ninth Circuit was filed in this court on August 10, 2007.
A certificate of appealability may issue only if petitioner has made a substantial showing that the court abused its discretion by denying the Rule 60(b) motion. Lynch v. Blodgett, 999 F.2d 401, 402-403 (9th Cir. 1993).
Petitioner's main problem, as set forth in his December 11, 2006, 60(b) motion, is the alleged lack of communication between him and the counsel who represented him in these proceedings. This issue does raise a colorable claim for relief from judgment pursuant to Rule 60(b). Accordingly, the court did not abuse its discretion by denying the 60(b) motion.
Accordingly, a certificate of appealability should not issue in this action.
IT IS SO ORDERED.