Steve Henley v. RICKY BELL, Warden

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0087n.06
Filed: February 2, 2009
No. 09-5085
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STEVE HENLEY,
Petitioner-Appellant,
v.
RICKY BELL, Warden,
Respondent-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
Before: SILER, COLE, and COOK, Circuit Judges.
PER CURIAM. Petitioner Steve Henley moves this Court to declare a certificate of
appealabilty (“COA”) unnecessary to appeal the denial of a motion made under Rule 60 of the
Federal Rules of Civil Procedure, or in the alternative, to grant a certificate of appealability. He also
moves for a stay of his execution, scheduled for February 4, 2009, pending the disposition of his
Rule 60 claim. We hold that a COA is necessary to appeal the denial of his Rule 60 motion, refuse
to issue one, and dismiss his motion for stay of execution as moot.
In United States v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007), we held that a COA is required
to appeal the denial of a Rule 60 motion in a habeas corpus proceeding. That holding governs

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No. 09-5085
Henley v. Bell
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Henley’s current claim; he may not appeal denial of his Rule 60 motion without a certificate of appealability.
In the alternative, Henley petitions this Court to issue a COA. “To obtain a certificate of
appealability, a prisoner must demonstrate that reasonable jurists could disagree with the district
court’s resolution of his constitutional claims or that the issues presented warrant encouragement to
proceed further.” Banks v. Dretke, 540 U.S. 668, 674 (2004). Having reviewed the parties’ briefs
and the district court’s opinion, we conclude that Henley has not met this standard. Consequently,
we decline to issue a COA for the reasons expressed in the district court’s well-reasoned opinion of
January 29, 2009.
Because we decline to issue a certificate of appealability, we also dismiss as moot Henley’s
motion to stay his execution pending the disposition of this case.

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