Opinion
8:22CV412
03-04-2024
KIRK D. ROBINSON, Petitioner, v. TAGGART BOYD, Warden of RTC; and ROB JEFFREYS, Director of Corrections, Nebraska, Respondents.
AMENDED ORDER
Robert F. Rossiter, Jr. Chief United States District Judge
This matter is before the Court on remand from the Eighth Circuit Court of Appeals (Filing No. 82) for a determination of whether to issue a certificate of appealability with respect to Petitioner's appeal of this Court's denial of his Motion for Relief from Judgment. (See Filing No. 78; Filing No. 79.)
A certificate of appealability is required to appeal from “the final order in a habeas corpus proceeding” brought pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 2253(c)(1); see also 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The Eighth Circuit has concluded that a certificate of appealability is required to appeal from the denial of a Rule 60(b) motion in a habeas corpus proceeding. See United States v. Lambros, 404 F.3d 1034, 1036-37 (8th Cir. 2005) (requiring certificate of appealability for appeal from denial of Rule 60(b) relief in § 2255 context). The standards for certificates (1) where the district court reaches the merits or (2) where the district court rules on procedural grounds are set forth in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
In this case, Petitioner has failed to make a substantial showing of the denial of a constitutional right. The Court is not persuaded that the claims raised in Petitioner's Rule 60(b) motion are debatable among reasonable jurists, that a court could resolve the claims differently, or that the claims deserve further proceedings. Accordingly,
IT IS THEREFORE ORDERED that the Court will not issue a certificate of appealability in this case.