Krivi v. USA

Filing 113

ORDER denying 111 Motion for Certificate of Appealability. Signed by Judge David R. Herndon on 7/1/2015. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUSTIN KRIVI,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

No. 10-CV-570-DRH

MEMORANDUM and ORDER
HERNDON, District Judge:
I. INTRODUCTION
Before the Court is petitioner Justin Krivi’s motion for a certificate of
appealability (Doc. 111) in relation to the Court’s June 8, 2015, order denying
relief pursuant to Federal Rule of Civil Procedure 60(b)(6) and motion for relief
pursuant to Federal Rule of Civil Procedure 60(b)(4) (Doc. 110). Mr. Krivi has not
filed a Notice of Appeal.
In the subject order, the Court found Mr. Krivi’s 60(b)(6) motion was an
unauthorized successive § 2255 petition and dismissed the same for lack of
subject matter jurisdiction. With regard to Mr. Krivi’s 60(b)(4) claims the Court
found the motion must be dismissed because (1) Rule 60(b)(4) relief was not
appropriate; (2) a violation of Rule 8(c), under the circumstances in Mr. Krivi’s
case, did not amount to a violation of due process; and (3) the motion was an
unauthorized successive § 2255 petition.

Page 1 of 2

Pursuant to § 2253, a certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
This requirement has been interpreted by the Supreme Court to mean that an
applicant must show that “reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Thus, Mr. Krivi need not show that his appeal will
succeed, but he must show “something more than the absence of frivolity” or the
existence of mere “good faith” on his part. Miller–El v. Cockrell, 537 U.S. 322,
337, 338 (2003). If the district court denies the request, a petitioner may request
that a circuit judge issue the certificate of appealability. FED. R. APP. P. 22(b)(1)(3).
For the reasons detailed in the Court’s order issued on June 8, 2015, the
Court has determined that Mr. Krivi has not made “a substantial showing of the
denial of a constitutional right.” Accordingly, Mr. Krivi’s request for a certificate of
appealability is DENIED.
For the reasons discussed herein, the Court DENIES Mr. Krivi’s request for
a certificate of appealability.

Digitally signed
by David R.
Herndon
Date: 2015.07.01
13:26:22 -04'00'

IT IS SO ORDERED.
Signed this 1st day of July, 2015.

United States District Court
Page 2 of 2