Opinion
Case No: 3:00cr84/LAC, 3:03cv541/LAC/MD.
March 25, 2008
ORDER
The defendant has filed a notice of appeal (doc. 311) which this court construes as a request for a certificate of appealability. Unless a certificate of appealability is issued, the defendant may not take an appeal from the final order denying relief pursuant to Rule 60(b). Williams v. Chatman, 510 F.3d 1290, 1294 (11th Cir. 2007). A COA should not issue in the appeal from the denial of a Rule 60(b) motion unless the defendant/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 such a showing, his request for a certificate of appealability is DENIED.
See Edwards v. United States, 114 F.3d 1083 (11TH Cir. 1997) (district courts must treat notices of appeal in Section 2255 actions as applications for certificates of appealability).
Defendant has not filed a motion for leave to proceed in forma pauperis. Because the court finds that the appeal is not taken in good faith and defendant is not otherwise entitled to so proceed, in the event that he did file such a motion, leave to so proceed should also be denied. Fed.R.App.P. 24(a)(3). Defendant shall pay the $455.00 filing fee within thirty days.
DONE AND ORDERED.