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Federal Habeas – Procedure — Appellate — Certificate of Appealability: FRCP 60(b) Motion

Michael A. Sveum v. Smith, 403 F. 3d 447 (7th Cir. No. 05-1255, 3/31/05)

Issue/Holding: Denial of FRCP 60(b) motion to reopen, which was in effect a “mislabeled habeas corpus petition reasserting” previously rejected claim, required certificate of appealability. Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004) (district court’s dismissal of motion, on ground it is unauthorized successive collateral attack, constitutes final order within 28 U.S.C. § 2253(c) and therefore requires certificate of appealability), adopted.

See Joseph Arrieta v. Battaglia, No. 04-3050, 8/24/06 for detailed discussion of Rule 60, especially its relation to unexhausted-claim petition (summary here). Also see, Gonzales v. Crosby, 125 S. Ct. 2641 (2005) (essentially limiting Rule 60(b) to attack on integrity of federal habeas proceeding, as opposed to substantive ground for relief). However, this also means that where the district court dismisses the petition without reaching the merits of the claims in the petition, the petitioner may file a Rule 60 to reopen without first obtaining judicial authorization, Butz v. Mendoza-Powers, 9th Cir No. 06-71137, 2/1/07. And, albeit without citing SveumCarlos Curry v. U.S., 7th Cir No. 07-1658, 11/8/07: because court of appeals’ permission is required for a successive petition, where “a Rule 60(b) motion to vacate judgment is really a successive postconviction claim,” the district court lacks jurisdiction to rule on it without such permission; and any such ruling will be vacated.


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