Background
Keith W.R. Lowe, proceeding pro se, sought to appeal a district court order that accepted a magistrate judge’s recommendation and denied his motion under Federal Rule of Civil Procedure sixty point B for relief from a 2012 order. That 2012 order had denied relief on his petition under Section twenty-two hundred fifty-four of Title twenty-eight of the United States Code. Lowe also moved for the appointment of counsel.
The court’s reasoning
The court explained that an order denying a Rule sixty point B motion is not appealable unless a circuit justice or judge issues a certificate of appealability. A certificate will not issue absent a substantial showing of the denial of a constitutional right. The court reviewed the record and concluded that Lowe had not made the requisite showing. The district court had determined that Lowe demonstrated prolonged periods of competency and the ability to make reasoned and timely filings in other pro se cases, failing to show that his motion was made within a reasonable time or that equitable tolling should apply.
What it means going forward
The dismissal prevents further appellate review of the underlying habeas claims in the Fourth Circuit. The prisoner remains subject to the district court’s 2012 denial of relief.
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