Hornsby v. Booker
OPINION AND ORDER DENYING Certificate of Appealability re 43 Notice of Appeal Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number: 2:06-cv-12608
HON. VICTORIA A. ROBERTS
OPINION AND ORDER DENYING CERTIFICATE OF APPEALABILITY
Michigan state prisoner James Hornsby filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his convictions for armed robbery, carrying a
concealed weapon, and possession of a firearm during the commission of a felony. On
March 21, 2007, the Court denied the petition because it was not timely filed. Almost
five years later, Petitioner filed a motion for relief from judgment under Fed. Rule Civ. P.
60(b)(4), which the Court denied on February 21, 2013. Petitioner has now filed a notice
Before Petitioner may appeal the Court’s decision denying his motion, a certificate
of appealability (COA) must issue. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b);
U.S. v. Hardin, 481 F.3d 924, 926 (2007) (requiring a certificate of appealability as a
prerequisite for a habeas petitioner’s appeal of the denial of a Rule 60(b) motion). A
COA may be issued “only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U .S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483
(2000). Petitioner must “demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 483. The
Supreme Court has also explained that “[t]his threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims.” Miller–El v.
Cockrell, 537 U.S. 322, 336 (2003). “A prisoner seeking a COA must prove ‘something
more than the absence of frivolity’ ‘or the existence of mere good faith on his or her
part.’” Id. at 338, quoting Barefoot, 463 U.S. at 893.
The Court denied habeas corpus relief because the petition was barred by the oneyear statute of limitations. The Court denied the motion for relief from judgment because
it was not filed “within a reasonable time” as required by Fed. R. Civ. P. 60(c)(1). The
Court further held that, even if the claim was not time-barred, it was meritless. Rule
60(b)(4) provides for relief in circumstances where the underlying judgment is void.
Antoine v. Atlas Turner, Inc., 66 F.3d 105, 108 (6th Cir. 1995). “A judgment is void under
60(b)(4) ‘if the court that rendered it lacked jurisdiction of the subject matter, or of the
parties, or if it acted in a manner inconsistent with due process of law.’” Id., quoting In
re Edwards, 962 F.2d 641, 644 (6th Cir. 1992). The Court held that Petitioner failed to
demonstrate that this Court lacked jurisdiction over his habeas corpus petition or over the
parties or that this Court acted in a manner inconsistent with due process.
The Court finds that jurists of reason would not find the conclusion that the motion
should be denied to be debatable or wrong. See Slack, 529 U.S. at 484.
Accordingly, a certificate of appealability is DENIED.
IT IS ORDERED.
S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
DATE: March 28, 2013
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