                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA




 UNITED STATES OF AMERICA,


   v.
                                                      Crim. No. 01-0311 (TFH)
 GENO W. JENKINS,

                                 Petitioner.
                                                                                FILED
                                                                                 JUL 10 2013
                                                                          Clerk, U.S. District & Bankruptcy
                                                                         Courts for the District of Columbia
                                  MEMORANDUM OPINION

        On April 23, 2013, the United States Court of Appeals for the District of Columbia

Circuit directed this Court to determine whether the petitioner, Geno Jenkins, is entitled to a

Certificate of Appealability pursuant to 28 U.S.C. § 2253(c). This Court previously denied

Petitioner's 28 U.S.C. § 2255 motion and denied Petitioner's motion, pursuant to Fed. R. Civ. P.

60(b), to reissue the Court's order on the§ 2255 motion. For the reasons below, this Court

concludes that a Certificate of Appealability is not warranted.



        I.     Factual and procedural background

        On April 6, 2005, Petitioner Jenkins was sentenced to 262 months in prison after being

found guilty of possession with intent to distribute less than ten grams of heroin. On February

11, 2008, Jenkins filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

§ 2255, alleging ineffective assistance of counsel. This Court denied that motion on May 28,

2010. On February 7, 2013, Petitioner filed a motion requesting that the Court vacate and

reissue its May 28, 2010 Opinion and Order, pursuant to Fed. R. Civ. P. 60(b). In support,

Petitioner argued that he never received a copy of this Court's May 28, 2010 Opinion and Order,
that he did not learn of the denial of his§ 2255 motion until February 1, 2013, and that the Court

should therefore resissue its order to allow him to file a notice of appeal within the required time

period. On March 5, 2013, this Court denied Petitioner's motion to reissue its order, finding that

the petitioner filed his February 7, 2013 motion well outside the clear 180-day time limit

specified in Fed. R. App. P. 4(a)(6).



        II.     Legal Standard

        A Certificate of Appealability "may issue ... only if the applicant has made a substantial

showing of the denial of a constitutional right." 28 U.S. C. § 2253(c)(2); United States v. Gregg,

No. 07-3087, 2008 U.S. App. LEXIS 3464, at* 1 (D.C. Cir. Feb. 7, 2008) (requiring a certificate

of appealability to pursue appeal of ruling on Rule 60(b) motion). To make a substantial

showing of the denial of a constitutional right, the petitioner must "show[] that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were 'adequate to deserve encouragement to

proceed further."' Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle,

463 U.S. 880, 893 (1983)). After carefully considering the entire record in this case, the Court

concludes that a Certificate of Appealability is not warranted.

        Where, as here, the court denied the habeas petition on procedural grounds, a Certificate

of Appealability "should issue when the prisoner shows, at least, that jurists of reason would find

it debatable whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling." !d. When, however, a "plain procedural bar is present" and "the district court

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is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the petitioner should be allowed to proceed

further. In such a circumstance, no appeal would be warranted." !d.



       III.    Analysis

       As discussed in the Court's March 5, 2013 order denying Petitioner's Motion to Reissue

the Court's May 28, 2010 Order, the Petitioner failed to file his motion to reopen the period of

appeal on the latter order within 180 days if its issuance. The clear language ofF ederal Rule of

Appellate Procedure 4(a)(6) states that the district court may only reopen the time to file an

appeal if "the motion is filed within 180 days after the judgment or order is entered .... " Fed.

R. App. P. 4(a)(6). Further, the Advisory Committee Notes to the 1991 Amendment to Rule 4

specifies "an outer time limit of 180 days for a party who fails to receive timely notice of entry

of a judgment to seek additional time to appeal." Fed. R. App. P. 4 advisory committee's note.

Thus, "the district court lacks power to adopt a unique circumstances exception pursuant to Rule

60(b) to circumvent the 180-day deadline of Appellate Rule 4(a)(6)" In reSealed Case (Bowles),

624 F.3d 482, 489 (D.C. Cir. 2009). Given the clear language of the applicable rules and case

law, this Court finds that no reasonable jurist could conclude that this Court erred in denying

Petitioner's Motion to Reissue the Court's May 28, 2010 Order.



       IV.     Conclusion

       In light of the entire record, reasonable jurists could not debate whether Petitioner's

Motion should have been resolved in a different manner or that the issues presented were

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adequate to deserve encouragement to proceed further. Slack, 529 U.S. at 483-84. As a result,

because the petitioner has not made a substantial showing of the denial of a constitutional right,

the Court will decline to issue a Certificate of Appealability.

       An appropriate Order accompanies this memorandum opinion.




July 5, 2013
                                                              Thomas F. Ho n
                                                      Senior United States Di      udge




cc:    Mr. Geno W. Jenkins
       #07387-007
       FCI-Milan
       P.O. Box 1000
       Milan, MI 48160




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