IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHAEL J. FRENCH, : Petitioner : v. : Case No. 3:21-cv-97-KAP BOBBI JO SALAMON, : SUPERINTENDENT S.C.I. ROCKVIEW, : Respondent :

Memorandum Order

Petitioner filed a motion for a certificate of appealability in the Court of Appeals, see ECF no. 5 in French v. District Attorney of Clearfield County, No. 25-1265 (3d Cir.), and yesterday the Clerk of that court remanded this matter to me with directions either to issue a certificate of appealability or to state reasons why one should not issue. See id., ECF no. 6. I do not issue a certificate of appealability, and none should be issued. A certificate of appealability should not be issued unless a habeas petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.§ 2253(c)(2). A substantial showing is not synonymous with success: a petitioner need only show that jurists of reason would debate the correctness of a district court's denial of a habeas petition, or in this case a Rule 60 motion. See Miller-El v. Cockrell,

(2003); Hickox v. Superintendent Benner Twp. SCI,

, at *1 (3d Cir. Oct. 29, 2020). At the same time, more is required than good faith or the absence of frivolity on the part of the petitioner. Miller-El v. Cockrell, supra,

. The Supreme Court held in Slack v. McDaniel,

(2000), that: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, 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. Petitioner’s Rule 60 motion, which I interpreted as a defective attempt to raise the same claims raised in the petition for a writ of habeas corpus and rejected three years ago in French v. Salamon, No. 3:21-CV-97-KAP,

, at *1 (W.D. Pa. Jan. 26, 2022), certificate of appealability denied sub nom., French v. Warden, S.C.I. Rockview, No. 22-1363,

, at *1 (3d Cir. Sept. 8, 2022), certiorari denied sub nom. French v. Salamon,

,

(January 8, 2024), reh'g denied,

,

(May 13, 2024), must be treated as a second or successive 1 petition for the reasons I have already stated, and any new claims in the motion can only be considered after the Court of Appeals authorizes this court to consider them. See 28 U.S.C.§ 2244(b)(1), (2), and (3)(A). Even if a reasonable jurist would disagree with me about the lack of new claims in petitioner’s motion or the merits of any new claims, no reasonable jurist would disagree that procedurally I cannot consider any new claim unless the Court of Appeals authorizes me to do so. Instead of filing a Rule 60 motion, petitioner should have filed an application in the Court of Appeals for an order authorizing the district court to consider a second petition. Petitioner’s procedurally incorrect presentation of his claims cannot cause reasonable jurists to debate whether petitioner has made a substantial showing of a denial of a constitutional right because petitioner cannot possibly have made that showing. Ose DATE:_February 21, 2025 Keith A. Pesto, United States Magistrate Judge Notice by ECF to the Court of Appeals and counsel of record, and by U.S. Mail to: Michael James French NF-2309 S.C.I. Rockview 1 Rockview Place Bellefonte, PA 16823