United States v. Vargas, Michael

415 F.3d 23, 367 U.S. App. D.C. 255, 2005 WL 1618554

Opinion

Opinion PER CURIAM.

PER CURIAM.

In his petition for rehearing, Vargas asks for an opportunity to submit a brief on the question whether he needed a certificate of appealability under 28 U.S.C. § 2253(c)(1) in order to appeal the district court’s denial of his motion under Rule 60(b) of the Federal Rules of Civil Procedure. We see no reason to doubt our holding that he did need a certificate and that he was not entitled to one. After our decision the Supreme Court decided Gonzalez v. Crosby, — U.S.-, 125 S.Ct. 2641, — L.Ed.2d-(2005). The Court observed that requiring a certificate of ap-pealability for Rule 60(b) motions in habe-as cases, as many courts of appeals have, appeared to be “plausible” and to have a sound basis in the statute. — U.S.-, at-n. 7, 125 S.Ct. 2641, 2650 n. 7, — L.Ed.2d-, at-n. 7.

Vargas also maintains that we erred in stating that the district court did not deny his Rule 60(b) motion on procedural grounds. The district court stated that Vargas had shown neither why the court’s original denial of habeas relief was void (Rule 60(b)(4)) nor why the judgment should be set aside (Rule 60(b)(6)). Even if these grounds of decision might be characterized as “procedural,” we would still deny a certificate of appealability. Vargas had no underlying constitutional claim which “jurists of reason” would find “debatable” and he offered no basis for supposing “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Gonzalez v. Secretary for Dep’t of Corr., 366 F.3d 1253, 1267 (11th Cir.2004) (en banc), affirmed on other grounds in Gonzalez v. Crosby.

The petition for rehearing is denied.