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YEMITAN v. U.S.

United States District Court, W.D. New York


May 11, 2005.

OLANEKAN YEMITAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge

MEMORANDUM and ORDER

Pursuant to the Mandate of the United States Court of Appeals, Second Circuit, filed March 1, 2005 (Docket No. 155),*fn1 petitioner has filed a request for a certificate of appealability (Docket No. 155), pursuant to 28 U.S.C. § 2253(c)(1)(B), in relation to the Court's denial of his Fed.R.Civ.P. 60(b)(6) motion (Docket No. 153). Petitioner's Rule 60(b) motion asked the Court to reconsider its Memorandum and Order, filed November 16, 1999 (Docket No. 146), denying petitioner's motion to vacate his conviction pursuant to 28 U.S.C. § 2255.*fn2 The basis of petitioner's request for a certificate of appealability is that reasonable jurists could disagree with respect to the Court's determination that petitioner's Rule 60(b) motion was not filed within a reasonable time or that the Second Circuit's decision in Harris v. United States, 367 F.3d 74 (2d Cir. 2004), was not a change in controlling authority and, therefore, not an "exceptional circumstance" entitling petitioner to equitable tolling of the statute of limitations. Petitioner has also filed a "Motion for Determination of Status of Certificate of Appealability Request." (Docket No. 157).

This Court finds that, for the reasons set forth in its denial of petitioner's Rule 60(b) motion (Docket No. 153) and its initial dismissal of petitioner's § 2255 motion (Docket No. 146), petitioner has not made a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), by demonstrating "that reasonable jurists would find th[is] court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, petitioner's request for a certificate of appealability (Docket No. 156) and his motion for a determination of the status of said request are denied (Docket No. 157).

  SO ORDERED.


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