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158 F. App'x 613

United States v. Kizzee

U.S. Courts of Appeals

Decided December 14, 2005

U.S. Courts of Appeals · decided 2005-12-14

Applies 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2255 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Slack v. McDaniel · Miller-El v. Cockrell Director Texas Department of Criminal Justice Institutional Division · Carter v. Fenner

Decided 2005-12-14

PER CURIAM: *

¶1 Anthony Kizzee, federal prisoner # 07411-112, challenged his drug-related convictions in a 28 U.S.C. § 2255 motion. The district court denied his motion and denied Kizzee a certifícate of appealability (“COA”). Kizzee filed a Fed.R.Civ.P. 60(b) motion, which argued that the district court applied the wrong standard of review in denying his COA motion. Kizzee appeals the denial of his Fed.R.Civ.P. 60(b) motion. We review the district court’s order for an abuse of discretion. See Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir.1998).

¶2 The district court recited the correct legal standards in its order denying Kizzee’s COA motion. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The district court’s statement that Kizzee’s appeal was not taken in good faith indicates that the district court concluded Kizzee had not made the required showing to obtain a COA. Moreover, the district court stated that it did in fact consider the COA standard when denying Kizzee’s COA motion. As Kizzee has not shown that the district court’s denial of his Fed.R.Civ.P. 60(b) motion was an abuse of discretion, the judgment is AFFIRMED. Kizzee’s request for a COA is DENIED AS UNNECESSARY. See Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir.2002).

*

¶3 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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