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United States v. Varner

United States District Court, E.D. California

February 21, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JORDAN VARNER, Defendant.

ORDER DENYING A CERTIFICATE OF APPEALABILITY

WILLIAM B. SHUBB, District Judge.

On January 17, 2014, the court denied defendant Jordan Varner's motion for relief from final judgment pursuant to Federal Rule of Civil Procedure 60(b). (Docket No. 70.) Defendant filed a notice of appeal from that ruling on February 18, 2014, and now seeks a certificate of appealability. (Docket No. 71.)

Because the court dismissed defendant's motion "on procedural grounds" and did not reach the merits of his constitutional claims, it may issue a certificate of appealability only if "jurists of reason would find it debatable whether the [motion] states a valid claim of the denial of a constitutional right, and 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 (2000). Each of these questions "is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments." Id . at 485.

As the court explained in an earlier Order, defendant's attempt to challenge his sentence by bringing a motion under Rule 60(b) rather than a petition for relief under 28 U.S.C. § 2255 was "plainly inappropriate." (Docket No. 68.) Defendant now appeals this ruling on the basis that the court erroneously construed his Rule 60(b) motion as a petition under § 2255 in violation of Castro v. United States , 540 U.S. 375, 382-83 (2003). (Docket No. 71.) As its earlier Order makes clear, the court did not do so; in fact, it specifically cited Castro in support of the proposition that it would be inappropriate to construe the motion as a petition under § 2255 absent notice and consent. (Docket No. 68.)

In any event, defendant has not demonstrated that "jurists of reason would find it debatable" that defendant's Rule 60(b) motion was an improper vehicle to challenge his sentence or that the court correctly declined to construe that motion as a petition under § 2255. Slack , 529 U.S. at 485. Accordingly, because defendant has not made the required threshold showing of procedural error, the court declines to issue a certificate of appealability.

The Clerk of the Court is directed to send a copy of this Order to the Clerk of the United States Court of Appeals for the Ninth Circuit.

IT IS SO ORDERED.


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