Opinion
3:01-cr-00263-BR
05-18-2015
UNITED STATES OF AMERICA, Plaintiff, v. TERRANCE FISCHER, Defendant.
ORDER
BROWN, Judge.
This matter comes before the Court on remand from the Ninth Circuit Court of Appeals for issuance or denial of a certificate of appealability pursuant to 28 U.S.C. § 2253(c).
"The district court should grant an application for a certificate of appealability only if the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). To obtain a certificate of appealability under 28 U.S.C. § 2253(c), a habeas petitioner must make a showing that reasonable jurists could debate whether or agree that the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Defendant filed a Motion (#450) for Reconsideration and Relief Pursuant to [Federal Rule of Civil Procedure] 60(b) seeking (1) reconsideration of the Court's Opinion and Order (#440) issued October 28, 2014, in which the Court denied Defendant's Motion (#431) to Reduce Sentence pursuant to a writ of audita querela and (2) relief from his sentence pursuant to Federal Rule of Civil Procedure 60(b). This Court denied Defendant's Motion because (1) a writ of audita querela was unavailable in light of the fact that the relief Defendant sought was available pursuant to 28 U.S.C. § 2255; (2) Federal Rule of Civil Procedure 60(b) did not provide a stand-alone mechanism for Defendant to seek relief from his criminal sentence; and (3) to the extent that Defendant sought reconsideration of the Court's denial of Defendant's Motion (#266) to Vacate or Correct Sentence under 28 U.S.C. § 2255, the Court concluded Defendant's Motion was untimely because it was made almost eight years after the Court denied Defendant's § 2255 Motion. The Court also declined to construe Defendant's Motion as brought under § 2255 because Defendant does not have authorization pursuant to § 2255(h) to bring a successive § 2255 petition.
On this record the Court concludes reasonable jurists could not debate whether Defendant's Motion, however construed, should have been resolved in a different manner. Accordingly, the Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c).
CONCLUSION
For these reasons, the Court DENIES Defendant a Certificate of Appealability.
IT IS SO ORDERED.
DATED this 18th day of May, 2015.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge