McIntosh v. Pruitt et al.

Filing 26

OPINION AND ORDER by District Judge Ronald A. White denying certificate of appealability (Re: 20 Notice of Appeal - Final Judgment ) and directing Court Clerk transmit a copy of this Opinion and Order to the Tenth Circuit Court of Appeals(lal, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RICHARD SCOTT McINTOSH,
Petitioner,
v.
E. SCOTT PRUITT,
Respondent.

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Case No. CIV 16-460-RAW-KEW

OPINION AND ORDER
DENYING CERTIFICATE OF APPEALABILITY
On August 21, 2017, Petitioner’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 was dismissed as barred by the statute of limitations, and judgment was entered
(Dkts. 15, 16). He did not appeal that decision. On February 18, 2020, however, he filed a
motion pursuant to Fed. R. Civ. P. 60(b), or as an independent action pursuant to Fed. R. Civ.
P. 60(d)(1) (Dkt. 17 at 1).
On August 6, 2020, Petitioner’s Rule 60(b) motion was denied as untimely, and his
request pursuant to Rule 60(d)(1) was denied for his failure to make the necessary showing
for relief under that statute (Dkt. 19). The Court did not address whether a certificate of
appealability (COA) should issue, id., and Petitioner did not request a COA. Therefore, on
August 27, 2020, the Tenth Circuit Court of Appeals issued a limited remand for
consideration of whether to issue a COA with respect to the denial of Petitioner’s motion.
McIntosh v. Pruitt, No. 20-7054 (10th Cir. Aug. 27, 2020) (Dkt. 25).
After careful review, the Court finds Petitioner has failed to make a “substantial

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showing of the denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). He
also has not shown “at least, that jurists of reason would find it debatable whether [Petitioner]
states a valid claim of the denial of a constitutional right and that jurists of reason would find
it debatable whether [this] court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). Therefore, a COA cannot be issued.
ACCORDINGLY,
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Petitioner is DENIED a certificate of appealability.

2.

The Court Clerk is directed to transmit a copy of this Opinion and Order to the

Tenth Circuit Court of Appeals, pursuant to the August 27, 2020, Order in Case No. 20-7054
(Dkt. 25).
IT IS SO ORDERED this 2nd day of September 2020.

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