Maxwell v. White

Filing 48

ORDER denying 44 Motion to Alter Judgment; denying 45 Motion for Certificate of Appealability. Signed by Judge James M. Moody on 12/30/09. (dac)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS ROBERT T. MAXWELL ADC #108778 VS. CASE NO. 5:09CV00111 JMM RESPONDENTS ORDER Pending before the Court is petitioner's Motion for a Certificate of Appealability and a Motion to Alter or Amend Judgment. Petitioner filed these motions and a notice of appeal to the Court of Appeals for the Eighth Circuit on December 28, 2009. For this Court to grant a certificate of appealability, the petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2); Winfield v. Roper, 460 F.3d 1026 (8th Cir. 2006) . A "substantial showing" is one in which a petitioner demonstrates that his "`issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.'" Randolph v. Kemna, 276 F.3d 401, 402 n.1 (8th Cir.2002) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Petitioner has failed to make a substantial showing of the denial of any constitutional right and his Motion for Certificate of Appealability is denied (#45). Petitioner's Motion to Alter the Judgment which the Court will construe as a Federal Rule of Civil Procedure 60(b) motion is denied for the reasons previously stated by the Court (#44). See Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004) (district court may consider a Rule 60(b) motion even when notice of appeal has been filed). To the extent the petitioner is making new claims in this Rule 60(b) motion, these are dismissed as being a second or successive habeas petition. See Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009). IT IS SO ORDERED this 30 day of December , 20 09 . PETITIONER D. WHITE, WARDEN MAXIMUM SECURITY UNIT, ADC . James M. Moody United States District Judge

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