The opinion of the court was delivered by: THOMAS HOGAN, Chief District Judge
Pending before the Court is Defendant Robert Thomas' Request
for Certificate of Appealability [# 81]. After careful
consideration of the record, the Court will deny the motion.
Thomas asks the Court to grant a certificate of appealability
("COA") as to the Court's Memorandum Opinion [# 78] and
accompanying Order [# 77] dated March 25, 2005. In that ruling,
the Court denied four motions filed by Thomas: a motion to
vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255 [# 72], a motion for reconsideration based on Rule
60(b)(6) of the Federal Rules of Civil Procedure [# 74], and two
separate motions for modification of sentence pursuant to
28 U.S.C. § 3582(c)(2) [# 75, 76].
A certificate of appealability is required before an appeal may
be taken from the final order in motion under § 2255.
28 U.S.C. § 2253(c)(1). The Court may only issue a COA if the applicant "has
made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). "The COA determination under §
2253(c) requires an overview of the claims in the habeas petition
and a general assessment of their merits." Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). Where the movant's claims were rejected
solely on procedural grounds, the movant must show both "that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable that the district
court was correct in its procedural ruling." Slack v. McDaniel,
529 U.S. 473, 484 (2000); see also United States v. Jones,
287 F.3d 325, 329 (5th Cir. 2002) (applying Slack to COA
determination in context of § 2255 proceedings).
Thomas' four motions are all derived from his argument that his
sentence was invalidated by United States v. Booker,
125 S. Ct. 738 (2005). The first motion is a successive § 2255 motion. The
Court held that it did not have jurisdiction to consider such a
motion without certification from the Court of Appeals. See
28 U.S.C. § 2255. As Thomas lacked such certification, no jurist of
reason could find the issue of jurisdiction debatable. Therefore,
a COA is denied as to the Court's ruling on Thomas' § 2255
A COA is also denied as to the Court's ruling on Thomas' motion
under Rule 60(b)(6) of the Federal Rules of Civil Procedure. In
that ruling, the Court refused to reconsider its denial of
Thomas' initial § 2255 motion, and its denial of a COA with
regard to that motion, because Thomas failed to make any showing
that his situation was "extraordinary" as required for relief.
See Ackermann v. United States, 340 U.S. 193, 202 (1950).
Here, the issue Thomas seeks to appeal deals not with a
constitutional right, but with the Court's application of Rule
60(b)(6). Accordingly, the Court will deny Thomas' request for a
COA on this issue. See United States v. Vargas, 393 F.3d 172,
175 (D.C. Cir. 2004).
The third ruling for which Thomas seeks a COA, denied his first
motion under 28 U.S.C. § 3582(c)(2), in which Thomas argued that
his sentence should be reduced as the result of an amendment to the United States Sentencing Guidelines. Because the
guideline range applicable to Mr. Thomas was not lowered as a
result of the amendment on which he relied, the Court ruled that
it lacked authority to modify Mr. Thomas' sentence. The Court did
not recharacterize Thomas' motion as one under § 2255, but rather
applied § 3582. Therefore, a COA is denied as unnecessary.
Finally, Thomas' fourth motion, while styled as one under
28 U.S.C. § 3582(c)(2), was recharacterized as a successive § 2255
motion, because it asked the Court to modify Thomas' sentence on
the basis of the Booker decision. As stated earlier, no
reasonable jurist could find that this Court had jurisdiction to
entertain such a motion absent certification from the Court of
Appeals. The motion for a COA is also denied as to this portion
of the Court's ruling.
For the reasons stated above, the Court will deny Mr. Thomas'
Request for Certificate of Appealability as to all of the issues
ruled upon by the Court's Memorandum Opinion and Order dated
March 25, 2005. An appropriate order will accompany this
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