Opinion
Case No: 3:98cr126/LAC.
March 8, 2007
ORDER
The defendant has filed a notice of appeal and request for a certificate of appealability. (Doc. 247). He seeks to appeal this court's order dated November 14, 2006 denying his omnibus motion for relief from operation of order/judgment denying petitioner's motion under title 28 U.S.C. § 2255, pursuant to Rule 60(b)(5) and Rule 60(b)(6), and its December 16, 2006 denial of his motion for reconsideration. (Doc. 241, 242, 243, 244 245). Unless a certificate of appealability is issued, the defendant may not take an appeal from the final order denying Section 2255 relief.See 28 U.S.C. 2253(c)(1)(B). Appeal of denial of Rule 60(b) motion requires certificate of appealability. Gonzalez v. Secretary of Department of Corrections, 317 F.3d 1308, 1312 (11th Cir. 2003). A COA should not issue in the appeal from the denial of a Rule 60(b) motion in a habeas case unless the petitioner shows, at a minimum, that it is debatable among jurists of reason whether the district court abused its discretion. See Mobley v. Head, 306 F.3d 1096, 1097 (11th Cir. 2002) ("This Court reviews a denial of a 60(b) motion for an abuse of discretion."). Because the defendant has not made a substantial showing of the denial of a constitutional right, his request for a certificate of appealability is DENIED.
Defendant has also filed a motion for leave to proceed in forma pauperis. (Doc. 451). Because the court finds that this appeal is not taken in good faith, and that defendant is not otherwise entitled to so proceed, Fed.R.App.P. 24(a)(3), he shall pay the $455.00 appellate filing fee within thirty days.
DONE AND ORDERED.