United States District Court, C.D. Illinois, Peoria Division
OPINION & ORDER
BILLY McDADE United States Senior District Judge
matter before this Court is Petitioner's Notice of Appeal
of this Court's June 16, 2016 Opinion & Order denying
his Rule 60(b) Motion to Vacate, Set Aside or Correct
Sentence. (Doc. 27). The Court construes the Notice of Appeal
as a request for a Certificate of Appealability. See
Fed. R. App. P. 22(b)(1); see also United States ex rel.
Bahler v. Ramos, No. 09-cv-1194, 2010 WL 1558685, at
*1-2 (C.D. Ill. Apr. 19, 2010). For the reasons stated below,
the request for a Certificate of Appealability is denied.
January 14, 2014, this Court dismissed Huber's Petition
for Writ of Habeas Corpus under 28 U.S.C. § 2255,
rejecting Petitioner's multitude of claims and declining
to issue a Certificate of Appealability. (Doc. 8).
Petitioner appealed (Doc. 11) and on January 6, 2015, the
United States Court of Appeals for the Seventh Circuit denied
Petitioner's request for a Certificate of Appealability
because there was not a substantial showing of a denial of a
constitutional right. (Doc. 21).
April 25, 2016, Petitioner filed a Motion to Vacate, Set
Aside or Correct Sentence pursuant to Fed.R.Civ.P. 60(b)
challenging the merits of the ruling on his § 2255
motion. (Doc. 22). On June 16, 2016, this Court denied the
motion, because a Rule 60(b) motion that challenges the
merits of a § 2255 motion is more accurately
characterized as a successive § 2255 motion.
Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005);
United States v. Carraway, 478 F.3d 845, 848 (7th
Cir. 2007) (explaining that the substance of a
petitioner's motion controls how his request for relief
is treated). Because this Court treated the Rule 60(b) motion
as a successive § 2255 motion, the Court dismissed it
for lack of jurisdiction, because Petitioner had not received
permission from the United States Court of Appeals for the
Seventh Circuit to file a second or successive § 2255
motion. (Doc. 24 at 6).
on June 27, 2016, Petitioner filed a Motion for
Reconsideration of the Court's Order and Opinion on
Petitioner's Rule 60(b) Motion. (Doc. 25). Petitioner
alleged that the Court denied his due process rights by not
granting an evidentiary hearing. (Doc. 25 at 2). On July 21,
2016, this Court denied Petitioner's Motion for
Reconsideration because Petitioner was not entitled to an
evidentiary hearing. (Doc. 26 at 3-4); see Martin v.
United States, 789 F.3d 703, 706 (7th Cir. 2015)
(explaining that it is well-established that district courts
are not required to hold evidentiary hearings in all §
2255 cases). Furthermore, the Court articulated to Petitioner
that a failure to hold an evidentiary hearing is not the sort
of error that would render a judgment void. O'Rourke
Bros. Inc. v. Nesbitt Burns, Inc. 201 F.3d 948, 951 (7th
Cir. 2000). On August 1, 2016, Petitioner filed a Notice of
Appeal of the Court's denial of his Rule 60(b) Motion and
the Court's denial of his Motion for Reconsideration with
the United States Court of Appeals for the Seventh Circuit.
(Doc. 27). On September 15, 2016, the Court received notice
from the Respondent that the Seventh Circuit was suspending
briefing because they had not yet received a Certificate of
Appealability from this Court for the denial of
Petitioner's Rule 60(b) Motion.
wishing to appeal the denial of a Rule 60(b) motion to vacate
a § 2255 decision must have a certificate of
appealability. West v. Schneiter, 485 F.3d 393, 394
(7th Cir. 2007). A certificate is required because
“petitioner's filing that seeks vindication of such
a claim is, if not in substance a ‘habeas corpus
application, ' at least similar enough that failing to
subject it to the same requirements would be
‘inconsistent with' the statute.”
Gonzalez, 545 U.S. at 530-31 (citing 28 U.S.C.
§ 2254 Rule 11). Therefore, courts will treat a Rule
60(b) motion as a habeas petition if it brings forth one or
more claims that assert a new ground for relief or attack the
previous federal court resolution on its merits. Id.
at 532. Petitioner's Motion does just that: it attacked
the merits of the resolution of the original § 2255.
(Doc. 22). Therefore, it must be treated as a successive
§ 2255. This Court has treated it as such and dismissed
it for lack of jurisdiction. (Doc. 24).
the Rule 60(b) motion is treated like a habeas petition, it
is subject to requirements of 28 U.S.C. § 2253(c), which
requires a certificate of appealability before it may be
appealed. The Petitioner requested a Certificate of
Appealability by filing a notice of appeal. West,
485 F.3d at 394. A certificate of appealability may only be
issued when the applicant has made “a substantial
showing of the denial of a constitutional right.” 28
U.S.C. §2253(c)(2). This has been interpreted to mean
that a Petitioner must show that “reasonable jurists
would find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). A petitioner need
not show that the appeal will succeed, but he must show
“something more than the absence of frivolity” or
the existence of mere “good faith” on his part.
Miller-El v. Cockrell, 537 U.S. 322, 337-38 (2003)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893
(1983)). If the district court denies the request, a
petitioner may request that the circuit judge issue the
Certificate. Fed. R. App. P. 22(b)(1).
notice of appeal will often struggle to meet the statutory
standard for certificate of appealability, because it does
not give reasons, or make a substantial showing, to the Court
to grant the certificate. West, 485 F.3d at 395.
This case is no different. In his Notice of Appeal, which
serves as Petitioner's request for a Certificate of
Appealability, Petitioner has made no argument that the
Court's decision denying his Rule 60(b) Motion was
debatable or incorrect. Moreover, the Court has reviewed its
Opinion & Order and finds no basis for determination that
the decision was debatable or incorrect. The Court does not
find that a reasonable jurist would find the Court's
assessment debatable or wrong.
THEREFORE ORDERED that the Petitioner's Notice of Appeal,
construed as a request for a Certificate of Appealability
(Doc. 27), is DENIED.
 This Court had dismissed one of
Petitioner's claims during its screening of the complaint
on August 23, 2013, pursuant to Rule 4 of the Rules Governing
§ 2255 Proceedings for the United States District Court.
(Doc. 4 at 2-3). The rest of the claims ...