Lynch v. Blodgett, 92-36991
| Decision Date | 13 July 1993 |
| Docket Number | No. 92-36991,92-36991 |
| Citation | 999 F.2d 401 |
| Parties | John LYNCH, Petitioner-Appellant, v. James BLODGETT, et al., Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Lynch, pro se.
Thornton Wilson, Deputy Atty. Gen., Olympia, WA, for respondents-appellees.
Before: BROWNING, TANG and NORRIS, Circuit Judges.
The issue before the court is whether a state prisoner who has petitioned for a writ of habeas corpus in federal court must obtain a certificate of probable cause to appeal the denial of a post-judgment motion for relief under Fed.R.Civ.P. 60(b). We conclude the petitioner must obtain a certificate of probable cause and remand this action to the district court for the limited purpose of determining whether a certificate of probable cause should issue.
Appellant John Lynch ("Lynch") is a Washington state prisoner who filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. On June 19, 1992, the district court granted respondent's motion for summary judgment and dismissed the petition. Lynch filed a timely notice of appeal from the district court's judgment, which was assigned Appeal No. 92-36520. Pursuant to Fed.R.App.P. 22(b), on July 9, 1993, the district court declined to issue a certificate of probable cause for the appeal to proceed. This court also denied Lynch a certificate of probable cause on August 26, 1992, thus terminating Appeal No. 92-36520.
Lynch filed in district court on September 28, 1992 a motion for relief from judgment under Fed.R.Civ.P. 60(b). The district court denied this motion on November 3, 1992. Lynch then filed a timely notice of appeal, which was designated Appeal No. 92-36991. Lynch did not request, nor has he received, a certificate of probable cause from either the district court or from this court for Appeal No. 92-36991. Respondents now move to dismiss the appeal for lack of jurisdiction.
28 U.S.C. § 2253 provides, "An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding [by a state prisoner], unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause."
Neither the Supreme Court nor this court has addressed whether Section 2253 requires a state habeas petitioner to obtain a certificate of probable cause to appeal from the denial by the district court of a Rule 60(b) motion.
The Eleventh Circuit, however, confronted this question in Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir.1989). Lindsey, a state habeas prisoner, moved to reopen the district court judgment under Rule 60(b). The district court denied both the motion and a subsequent application for a certificate of probable cause to appeal the denial of the Rule 60(b) motion. Lindsey then requested a certificate of probable cause from the appellate court. The appellate court ultimately denied the request, after first articulating the following standard for issuing a certificate of probable cause in this context:
Because the denial of a motion under Rule 60(b) is reviewable only for an abuse of discretion and a certificate of probable cause should issue only when a habeas petitioner has made a "substantial showing of the denial of a federal right," Barefoot v. Estelle, 463 U.S. 880, 893 [103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090] (1983), a certificate of probable cause to appeal the denial of Lindsey's Rule 60(b) motion should issue only if Lindsey has made a substantial showing that the district court abused its discretion by denying the Rule 60(b) motion.
The court adopts the standard articulated by the Eleventh Circuit. Title 28 U.S.C. § 2253 establishes the issuance of a certificate of probable cause as a jurisdictional prerequisite to appellate review from "the final order" in a federal habeas proceeding by a state prisoner. See Gardner v. Pogue, 558 F.2d 548, 549 (9th Cir.1977). The denial of a Rule 60(b) motion is a final, appealable order. See Wages v. I.R.S., 915 F.2d 1230, 1234 (9th Cir.1990). 1
To permit a state prisoner's habeas appeal to proceed from a denial of a Rule 60(b) motion without issuing a certificate of probable cause circumvents the obvious purpose of Section 2253, which is the creation of discretionary appellate review for habeas petitions filed by state prisoners. 2 By not requiring the issuance of a certificate of probable cause after the denial of a Rule 60(b...
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