RUFUS v. HEAD et al

Filing 66

ORDER denying as moot 65 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE CLAY D LAND on 11/09/2020 (glg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
MICHAEL ALONZA RUFUS,

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Petitioner,
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VS.
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Warden WALTER BERRY,
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Respondent.
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NO. 3:17-CV-00168-CDL-CHW

ORDER
Presently pending before the Court is pro se Petitioner Michael Alonza Rufus’s
motion for leave to proceed in forma pauperis on appeal (ECF No. 65). Petitioner appears
to be appealing the Court’s order denying Rule 60(b) relief (ECF No. 60). The appeal of a
denial of a Rule 60 motion requires a certificate of appealability (“COA”). Gonzales v.
Sec’y for Dep’t of Corrs., 366 F.3d 1253, 1263 (11th Cir. 2004) (en banc). Although
Petitioner has not expressly moved for a COA, his notice of appeal will be liberally
construed as an implied motion for a COA. Edwards v. United States, 114 F.3d 1083, 1084
(11th Cir. 1997) (per curiam).
“In order to obtain a COA, the petitioner must make ‘a substantial showing of the
denial of a constitutional right.’” Kellogg v. Strack, 269 F.3d 100, 104 (2d Cir. 2001)
(quoting 28 U.S.C. § 2253(c)(2)). Requiring the petitioner to make such a showing
demonstrates that the appeal has “a threshold quantum of merit” to proceed. Id. “In the
context of a denial of a Rule 60(b) motion, a substantial showing that the district court
abused its discretion indicates that the appeal has the threshold quantum of merit to go

forward.” Id. Thus, a COA should issue only where the petitioner can show that jurists of
reason would find it debatable (1) that “the district court abused its discretion in denying
the Rule 60(b) motion,” and (2) that “the underlying habeas petition, in light of the grounds
alleged to support the 60(b) motion, states a valid claim of the denial of a constitutional
right.” Id.; see also Lindsey v. Thigpen, 875 F.2d 1509, 1512 (11th Cir. 1989) (holding
that a certificate of probable cause should issue only where petitioner makes “a substantial
showing” that the court “abused its discretion by denying the Rule 60(b) motion”).
Petitioner, whose Rule 60 motion was based largely on legal theories that are universally
recognized as frivolous, has failed to make this showing here. Accordingly, Petitioner is
DENIED a COA, and his pending motion for leave to proceed in forma pauperis (ECF
No. 65) is DENIED as moot.
SO ORDERED, this 9th day of November, 2020.

S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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