Opinion
04 Civ. 2198 (JFK), 96 Cr. 126 (JFK).
August 20, 2009
ORDER
On May 6, 2009, the Court denied Irving Mason's motion to vacate his conviction and sentence pursuant to Rule 60(b) of the Federal Rules of Civil Procedure or, alternatively, pursuant to 28 U.S.C. § 1651(a). The Court found that, because Mason challenged his underlying conviction and not the integrity of his habeas proceeding, his motion was beyond the scope of Rule 60(b).Mason v. United States, No. 04 Civ. 2198, 2009 U.S. Dist. LEXIS 38915, at *2-4 (S.D.N.Y. May 6, 2009). The Court further found that 28 U.S.C. § 2255 governed the relief Mason sought, precluding application of 28 U.S.C. § 1651(a). Id. at *4-6. On June 18, 2009, the Court denied Mason's motion for reconsideration of this ruling. On July 9, 2009, Mason filed a notice of appeal.
For Mason's convenience, the Court attaches this unpublished opinion hereto as the Court's Exhibit 1.
The Court now considers whether a certificate of appealability is necessary and whether one should issue. If a district court denies relief in the habeas corpus context or under 28 U.S.C. § 2255, the applicant may not appeal the decision "unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c). If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue." Fed.R.App.P. 22(b)(1).
In Kellogg v. Strack, the Second Circuit expanded the certificate of appealability requirement: "The COA requirement provided in 28 U.S.C. § 2253(c) applies to an order denying a Rule 60(b) motion for relief from a judgment denying a § 2254 [or 2255] petition." 269 F.3d 100, 104 (2d Cir. 2001). In reaching this conclusion, the Court offered the following analysis:
The Court inserts the reference to 28 U.S.C. § 2255 since this provision is considered in pari materia with § 2254 and, therefore, the reasoning of cases regarding § 2254 applies equally to § 2255. See Kellogg v. Strack, 269 F.3d 100, 103 n. 3 (2d Cir. 2001).
This Court has previously taken an expansive view towards the applicability of the [certificate of probable cause]/[certificate of appealability] requirement to orders other than an order denying a habeas petition. See Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990) (holding that a [certificate of probable cause] is required when a petitioner appeals the denial of a bail application pending the outcome of a habeas proceeding). We reasoned in Grune that "the interest served by the certificate of probable cause requirement — relieving the state and the court system of the burdens resulting from the litigation of insubstantial appeals — is equally served whether the order appealed is a final disposition of the merits or a collateral order." Id. at 44. This reasoning is equally applicable to appeals arising from orders denying post-judgment relief.Id. at 103.
A certificate of appealability is necessary in this case. The Court recognizes that the instant case is distinguishable fromKellogg since Mason is seeking to appeal the denial of a Rule 60(b) motion for relief from his underlying conviction, as opposed to relief from the subsequent habeas decision. Mason is also seeking to appeal the denial of his motion challenging his conviction under 28 U.S.C. § 1651. As mentioned above, the Court denied Mason's motions essentially on the ground that they were circumventions of 28 U.S.C. § 2255, the proper avenue for post-judgment relief in this case. In light of the Second Circuit's "expansive view" of the certificate of appealability requirement for "orders denying post-judgment relief," id., the Court finds that a certificate of appealability is necessary. See Espinal v. United States, No. 91 CR 310, 2006 WL 163179, at *3 (S.D.N.Y. Jan. 23, 2006) (refusing to grant a certificate of appealability to defendant after denying Rule 60(b) motion that challenged the underlying conviction as beyond the scope of the rule).
Mason's notice of appeal states that he intends to challenge "an Order denying petitioner's Petition under the All Writs Act (1651) (Audita Querela)." (Pet'r's Notice of Appeal.) Since it appears that Mason may have referenced the All Writs Act, 28 U.S.C. § 1651, to identify the order that he plans to appeal in its entirety, the Court does not construe his notice of appeal as only appealing the portion of the Court's ruling that concerns the All Writs Act.
To obtain a certificate of appealability, the petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In the context of a Rule 60(b) denial, a certificate of appealability "should issue only if the petitioner shows that (1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion, and (2) jurists of reason would find it debatable whether the underlying habeas petition, in light of the grounds alleged to support the 60(b) motion, states a valid claim of the denial of a constitutional right." Kellogg, 269 F.3d at 104.
Mason cannot meet his burden. As explained in the appealed opinion, Mason has not made a substantial showing of the denial of a constitutional right. Further, no jurist of reason would find that the Court abused its discretion in denying Mason's earlier motions.
The Court declines to issue a certificate of appealability.