USA v. Vargas, Michael, No. 03-3105 (D.C. Cir. 2005)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on December 21, 2004.
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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Filed July 12, 2005 No. 03-3105 UNITED STATES OF AMERICA, APPELLEE v. MICHAEL ANGELO VARGAS, APPELLANT Appeal from the United States District Court for the District of Columbia (97cr00020-01) On Petition for Rehearing ______ Before: EDWARDS and RANDOLPH, Circuit Judges, and WILLIAMS, Senior Circuit Judge. 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. ยง 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 2 need a certificate and that he was not entitled to one. After our decision the Supreme Court decided Gonzalez v. Crosby, No. 04-6432, 2005 WL 1469516 (U.S. June 23, 2005). The Court observed that requiring a certificate of appealability for Rule 60(b) motions in habeas cases, as many courts of appeals have, appeared to be plausible and to have a sound basis in the statute. 2005 WL 1469516, at *6 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 (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.
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