Opinion
CASE NO.: 3:04cv66/RV.
January 14, 2008
ORDER GRANTING CERTIFICATE OF APPEALABILITY
This matter is before the Court on Petitioner's application for a certificate of appealability (doc. 131). A certificate of appealability is required in order to appeal the denial of a Rule 60(b) motion for relief from a judgment in a 28 U.S.C. § 2254 proceeding. Jackson v. Crosby, 437 F.3d 1290, 1294 (11th Cir. 2006). See 28 U.S.C. § 2253(c)(1)(A); Fed.R.App.P. 22(b)(1). Such a certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to make the requisite showing, a petitioner must "sho[w] that reasonable jurists could debate whether (or for that matter, 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, 484, 120 S. Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983)); See also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003).
Upon review I conclude that the following issue is debatable among jurists of reason: whether Petitioner, in his motion for relief from judgment filed pursuant to Fed.R.Civ.P. 60(b)(3), alleged facts sufficient to constitute fraud upon the court in Petitioner's section 2254 habeas proceeding such that the Rule 60(b) motion should have been resolved in a different manner. I find that this issue is "adequate to deserve encouragement to proceed further," and that the appeal of this issue is taken in good faith.
Accordingly, it is ORDERED:
Petitioner's application for a certificate of appealability (doc. 131), is GRANTED. Petitioner may appeal and a certificate of appealability is issued for appeal on the issue identified above.
DONE AND ORDERED.