Steve Henley v. Ricky Bell, No. 09-5085 (6th Cir. 2009)

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0087n.06 Filed: February 2, 2009 No. 09-5085 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT STEVE HENLEY, Petitioner-Appellant, v. RICKY BELL, Warden, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE Before: SILER, COLE, and COOK, Circuit Judges. PER CURIAM. Petitioner Steve Henley moves this Court to declare a certificate of appealabilty ( COA ) unnecessary to appeal the denial of a motion made under Rule 60 of the Federal Rules of Civil Procedure, or in the alternative, to grant a certificate of appealability. He also moves for a stay of his execution, scheduled for February 4, 2009, pending the disposition of his Rule 60 claim. We hold that a COA is necessary to appeal the denial of his Rule 60 motion, refuse to issue one, and dismiss his motion for stay of execution as moot. In United States v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007), we held that a COA is required to appeal the denial of a Rule 60 motion in a habeas corpus proceeding. That holding governs No. 09-5085 Henley v. Bell Henley s current claim; he may not appeal denial of his Rule 60 motion without a certificate of appealability. In the alternative, Henley petitions this Court to issue a COA. To obtain a certificate of appealability, a prisoner must demonstrate that reasonable jurists could disagree with the district court s resolution of his constitutional claims or that the issues presented warrant encouragement to proceed further. Banks v. Dretke, 540 U.S. 668, 674 (2004). Having reviewed the parties briefs and the district court s opinion, we conclude that Henley has not met this standard. Consequently, we decline to issue a COA for the reasons expressed in the district court s well-reasoned opinion of January 29, 2009. Because we decline to issue a certificate of appealability, we also dismiss as moot Henley s motion to stay his execution pending the disposition of this case. -2-

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