United States v. Kizzee

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-60872
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY KIZZEE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:99-CV-321-GR
USDC No. 1:96-CR-28-1-GR
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
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 certificate
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
*
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this opinion should not be published and is not precedent except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.
No. 04-60872
-2-
district court’s order for an abuse of discretion. See Carter v.
Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998).
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
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (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).