Opinion
Case Nos. 4:93cr4028-WS, 4:05cv443-WS/WCS.
February 22, 2006
ORDER ON DEFENDANT'S NOTICE OF APPEAL
This cause is before the court on Defendant's notice of appeal. Doc. 858. He appeals the summary denial of his "Motion Filed under Federal Rule of Civil Procedure 60(b)(6) for Relief from Final Judgment Order Denying 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct." Doc. 850. While not necessarily a second or successive § 2255 motion requiring authorization for filing, the court found that Defendant was not entitled to Rule 60 relief. Docs. 851, 856, and 857 (report and recommendation, adopting order, and judgment).
It is noted that the Eleventh Circuit has twice denied leave to file a second or § 2255 successive motion. Doc. 846 and 855. The first denial was mentioned in the recommendation. Doc. 851, p. 2. The second denial was entered after the recommendation was entered but before it was adopted.
A certificate of appealability is required for this appeal. § 2253(c)(1)(B); Fed.R.App.P. 22(b)(1); Gonzalez v. Secretary for Dept. of Corrections, 366 F.3d 1253, 1262-64 (11th Cir. 2004) (en banc) (a certificate of appealability is required to appeal the denial of a Rule 60(b) motion for relief from judgment in a § 2255 proceeding), affirmed on other grounds Gonzalez v. Crosby, 545 U.S. ___, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005);Jackson v. Crosby, ___ F.3d ___, 2006 WL 237143 (11th Cir. February 2, 2006) at *3 ("[i]t is still the law of this circuit that `a certificate of appealability is required for the appeal of any denial of a Rule 60(b) motion for relief from a judgment in a [28 U.S.C.] § 2254 or [28 U.S.C.] § 2255 proceeding,'" quoting Gonzalez).
For the reasons set forth in the report and recommendation as adopted by the court, docs. 851 and 856 (incorporated herein by reference) Defendant is not entitled to a certificate of appealability as he has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 3394, n. 4, 77 L.Ed.2d 1090 (1983). Leave to proceed in forma pauperis should also be denied. Fed.R.App.P. 24(a).
It is therefore ORDERED:
A certificate of appealability SHALL NOT ISSUE, and leave to proceed in forma pauperis on appeal is DENIED.
DONE AND ORDERED.