OPINION

JOY FLOWERS CONTI, Chief District Judge.

I. Introduction

Pending before the court is a "motion for relief from a judgment or order pursuant to Fed. R. Civ. P . . . 60(d)(3) or in the alternative Hazel-Atlas independent action" (the "motion for relief from judgment") filed by pro se petitioner Larry Lewis Ferguson ("petitioner"). (ECF No. 1168.) Petitioner in the motion for relief from judgment raises issues similar to issues he raised in a motion to vacate, set aside, or correct sentence by a person in federal custody, pursuant to 28 U.S.C. § 2255 (the "§ 2255 motion") (ECF No. 958) and a motion for reconsideration (ECF No. 1051) of this court's opinion and order denying the § 2255 motion (ECF No. 1038). The government in its response in opposition to the motion for relief from judgment argues that the motion for relief from judgment is a second or successive § 2255 motion, and, therefore, this court lacks subject-matter jurisdiction to hear the motion. (ECF No. 1178 at 4.)

The government is correct. Petitioner in the motion for relief from judgment attacks the integrity of his underlying criminal convictions. Petitioner did not receive authorization from the Third Circuit Court of Appeals to file a second § 2255 motion. This court, therefore, lacks subject-matter jurisdiction to hear petitioner's second § 2255 motion, i.e., the motion for relief from judgment. The motion for relief from judgment will, therefore, be denied for the reasons stated more fully herein.

II. Procedural Background

This court in its opinion denying petitioner's § 2255 motion dated November 11, 2012, and its opinion denying petitioner's motion for reconsideration dated June 28, 2013, set forth in detail the background and procedural history of petitioner's case. The court in this opinion will repeat only the background and procedural history facts pertinent to the resolution of the motion for relief from judgment.

A federal grand jury indicted petitioner, among others, for, among other things, conspiracy to distribute and possess with intent to distribute at least 100 grams of heroin in violation of 21 U.S.C. § 846 and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). (ECF No. 1.) A superseding indictment charged petitioner with conspiracy with intent to distribute at least 100 grams of heroin (count one) and six substantive counts of possession with intent to distribute heroin (counts four, seven, nine, ten, twelve, and twenty). (ECF No. 354); Ferguson v. United States, Crim. Action No. 03-72, 2012 WL 5398809, at *1 (W.D. Pa. Nov. 2, 2012). Petitioner entered pleas of not guilty to all counts and proceeded to a trial, which ended in a mistrial. United States v. Ferguson, 394 F. App'x 873, 876 (3d Cir. 2010). A retrial was scheduled for January 2006. Ferguson, 2012 WL 5398809, at *1.

Before the retrial began, Assistant United States Attorney Todd Eberle ("Eberle") of the United States Attorney's Office for the Western District of Pennsylvania received a letter written by Arlando Crowe ("Crowe"), petitioner's cell mate in the prison where petitioner was being held while awaiting retrial. (T.T. 2/2/06 (ECF No. 746) at 5-6.) In the letter, Crowe claimed that his cell mate told him about his case and "how he manipulated, lied and had witnesses testify falsely." (Id. at 4, 23-24.) January 9, 2006, was the date by which the parties were to exchange discovery and share exhibit lists. The government at that time, however, had not yet interviewed Crowe. (Id. at 6, 10-19.) The government listed Crowe as a possible witness, but at that time did not produce any statements relating to Crowe as Jencks Act material, pursuant to the Jencks Act, 18 U.S.C. § 3500. (Id. at 4-5.)

On January 27, 2006, agents with the Drug Enforcement Agency (the "DEA"), Mauricio Jimenez ("Jimenez") and Victor Joseph ("Joseph"), interviewed Crowe, who told them specific details about petitioner. (T.T. 2/1/06 (ECF No. 745) at 15-16.) After the interview, the government made the decision to call Crowe as a witness during petitioner's trial. (T.T. 2/2/06 (ECF No. 746) at 26.) On January 31, 2006, the government produced to petitioner's counsel, Robert Stewart ("Stewart"), the DEA agents' interview notes as Jencks Act material. (T.T. 2/1/06 (ECF No. 745) at 2.) During a February 2, 2006 hearing, Stewart moved to exclude Crowe's testimony on the ground that the government failed to produce to him the Jencks Act material, including the letter written by Crowe and the interview notes, in advance of the January 9, 2006 deadline. (T.T. 2/2/06 (ECF No. 746) at 3-8.) The court denied the motion, but postponed Crowe's testimony until February 7, 2006, which permitted petitioner and his counsel seven days to review the Jencks Act material prior to Crowe testifying before the jury. (Id. at 13.)

On February 7, 2006, Crowe testified that petitioner revealed to him details about his involvement in the crimes charged in the superseding indictment. (T.T. 2/7/06 (ECF No. 747) at 8-88.) On February 23, 2006, a jury found petitioner guilty of six counts (one, four, seven, ten, twelve, and twenty) and not guilty of one count (count nine). (ECF No. 645.)

On September 1, 2006, petitioner's new counsel, John Halley ("Halley"), filed a motion for a new trial on petitioner's behalf. (ECF No. 767.) On October 13, 2006, the court on the record denied petitioner's motion for a new trial. (ECF No. 781.) On October 13, 2006, petitioner was sentenced to a term of imprisonment of 360 months at each of the six counts for which he was found guilty, a term of supervised release of 8 years at counts one and six, a term of supervised release of 6 years at counts four, seven, ten, twelve, and twenty, with all terms of supervised release to concurrently run, and a special assessment of $600. (ECF No. 806.) On October 20, 2006, petitioner filed a notice of appeal of the judgment entered against him. (ECF No. 810.) On November 12, 2010, the Third Circuit Court of Appeals affirmed this court's judgment entered against petitioner on October 20, 2006. (ECF No. 942.)

On February 7, 2011, petitioner filed his first § 2255 motion. (ECF No. 958.) On April 29, 2011, the government filed a response in opposition to petitioner's § 2255 motion. (ECF No. 977.) On June 9, 2011, petitioner filed a reply with respect to his § 2255 motion. (ECF No. 984.) Petitioner filed two motions to supplement his § 2255 motion, which the court construed as supplemental briefing and ultimately granted. (ECF Nos. 992-93, 995-996.) On January 6, 2012, the government filed a response in opposition to petitioner's first motion to supplement his § 2255 motion. (ECF No. 994.) On January 19, 2012, petitioner filed a reply to the government's response in opposition. (ECF No. 998.)

On November 2, 2012, the court issued an opinion, which set forth the reasons why the § 2255 motion would be denied and entered an order denying the motion and entering judgment in favor of the government. (ECF Nos. 1038, 1039.) On November 29, 2012, petitioner filed a motion for reconsideration of the court's judgment entered in favor of the government with respect to his § 2255 motion. (ECF No. 1051.) On February 14, 2013, the government filed a response in opposition to petitioner's motion for reconsideration. (ECF No. 1078.) On March 4, 2013, petitioner filed a reply, which was entitled a response, with respect to his § 2255 motion. (ECF No. 1084.) On April 22, 2013, petitioner filed a supplemental brief, which was entitled a sur-reply brief, with respect to his motion for reconsideration. (ECF No. 1100.) On June 28, 2013, the court entered an opinion and order denying petitioner's motion for reconsideration. (ECF No. 1121.)

On August 8, 2013, petitioner filed a notice of appeal of the court's opinion and order denying his § 2255 motion and the court's opinion and order denying his motion for reconsideration. (ECF No. 1131.) On August 27, 2013, petitioner filed an amended notice of appeal of the court's opinion and order denying his § 2255 motion and the court's opinion and order denying his motion for reconsideration. (ECF No. 1136.) On October 31, 2013, the Third Circuit Court of Appeals issued an order denying petitioner's motion for certificate of appealability explaining that "jurists of reason would not debate the District Court's denial on the merits of appellant's claims of ineffective assistance of trial and appellate counsel, or the District Court's denial of reconsideration, for the reasons that the District Court explained in its opinions." (ECF No. 1141 at 1.)

On February 26, 2015, petitioner filed the pending motion for relief from judgment and a brief in support of the motion. (ECF Nos. 1168 and 1169.) On June 16, 2015, the government filed a response in opposition to petitioner's motion for relief from judgment. (ECF No. 1178.) On July 27, 2015, petitioner filed a reply, which was entitled a response, with respect to his motion for relief from judgment. (ECF No. 1185.) On December 1, 2015, petitioner filed a motion to supplement his motion for relief from judgment. (ECF No. 1195.) On March 31, 2016, this court granted petitioner's motion to supplement. (ECF No. 1200.)

Petitioner's motion for relief from judgment having been fully briefed is now ripe to be decided by the court.

III. Discussion

1. Applicable Law

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), which, among other things, established stringent procedural and substantive requirements that an applicant must satisfy in order to file a "second or successive" habeas corpus petition with a district court.1 The AEDPA's requirements for filing a second or successive petition under § 2255 is codified at 28 U.S.C. § 2255(h). Section 2255(h) provides:

28 U.S.C. § 2255(h) (emphasis added). Among other things, the AEDPA requires that before filing a "second or successive" petition with the district court, an applicant must "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). A district court lacks subject-matter jurisdiction over an unauthorized second or successive petition. Lugo v. Zickefoose, 427 F. A'ppx 89, 92 (3d Cir. 2011) ("We also agree with the District Court's ultimate conclusion that it lacked subject matter jurisdiction over the petition, treated as a second or successive § 2255 motion."); Wilcox v. United States, Civ. Action No. 11-1247, 2015 WL 179542, at *1 (D.N.J. Jan. 14, 2015) ("This Court will deny the motion because it is a second or successive § 2255 petition. This Court lacks subject-matter jurisdiction to review it without authorization from the United States Court of Appeals for the Third Circuit ("Third Circuit")."). In other words, if a petitioner does not obtain authorization from the court of appeals to file a second or successive motion, the district court is without subject-matter jurisdiction to hear the petition.

Once it is determined that the filing of a petitioner is an unauthorized second or successive petition, a district court within the Third Circuit may proceed by entering an order either (1) dismissing the petition for lack of subject-matter jurisdiction, or (2) transferring the petition to the court of appeals pursuant to 28 U.S.C. § 1631 for consideration as an application to file a second or successive petition. Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002) ("When a second or successive habeas petition is erroneously filed in a district court without the permission of a court of appeals, the district court's only option is to dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631.").2 The AEDPA's substantive requirements, which are codified at § 2244(b), are the same whether an application is transferred from the district court or is filed by the applicant directly with the court of appeals.

To avoid the AEDPA's second or successive gatekeeping requirements, applicants seeking habeas relief will sometimes raise claims in what they designate as a motion under, among others, Federal Rule of Civil Procedure 60(b) or Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238 (1944). An applicant seeking habeas relief, however, "is not permitted to circumvent AEDPA's second or successive petition requirements simply by labeling the petition . . . as something other than what it is." Federal Habeas Manual § 11:42. In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court addressed the circumstances in which the utilization of Rule 60(b) is "inconsistent with" the AEDPA's second or successive requirements and, as a consequence, not available to a state prisoner seeking habeas relief. The Court held that a Rule 60(b) motion must be construed as a habeas application subject to § 2244(b)'s requirements when it advances one or more "claims." Gonzalez, 545 U.S. at 531-32.3 The Court explained that "[i]n most cases, determining whether a Rule 60(b) motion advances one or more `claims' will be relatively simple." Gonzalez, 545 U.S. at 532. Where "[a] motion . . . seeks to add a new ground for relief" it obviously is advancing a "claim." Id. So is a motion that "attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief." Id. (footnote omitted). Similarly, a motion that seeks to present newly discovered evidence in support of a claim previously denied presents a "claim." Id. The Court recognized that a Rule 60(b) motion is a "true" 60(b) motion if it challenges only a procedural ruling of the habeas court that precluded a merits determination of the habeas application, id. at 532 n.4, or challenges a defect in the integrity of the federal habeas proceedings, such as an assertion of fraud, id. at 532.

Thus, when a document designated as a Rule 60(b) motion is filed with the district court in a habeas case, the judge assigned to the case must first determine, using the criteria outlined in Gonzalez, whether the motion is a true Rule 60(b) motion or is actually a second or successive habeas petition. If the judge concludes that the motion is a true Rule 60(b) motion, the motion should be ruled upon in the manner any other Rule 60(b) motion would be. Gonzalez, 545 U.S. at 533-36. If, however, the judge concludes that the motion is an unauthorized second or successive habeas petition, it must be denied for lack of subject-matter jurisdiction or be transferred to the court of appeals for consideration as an application to file a second or successive petition. Id. at 531-32; Robinson, 313 F.3d at 139.

In Hazel-Atlas,4 the Supreme Court of the United States in a civil case recognized an exception to the general rule "that judgments should not be disturbed after the term of their entry has expired," and held that federal courts have an inherent power to "set aside their judgments after the expiration of the term at which the judgments were finally entered . . . under certain circumstances, one of which is after-discovered fraud." Hazel-Atlas, 322 U.S. at 244. To meet the "demanding standard" and prove a claim of fraud on the court, petitioner must show there was: "(1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) that in fact deceives the court." Herring v. United States, 424 F.3d 384, 390 (3d Cir. 2005). "[A] determination of fraud on the court may be justified only by `the most egregious misconduct directed to the court itself,' and that it `must be supported by clear, unequivocal and convincing evidence.'" Id. (quoting In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d 180, 195 (8th Cir. 1976)) (emphasis added). The court in United States v. Rodriguez explained:

United States v. Rodriguez, Crim. Action No. 98-362-12, 2012 WL 162297, at *4 (E.D. Pa. Jan. 18, 2012) (citing 11 CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KANE, FEDERAL PRACTICE AND PROCEDURE § 2870, at 411-13 (4d ed. 1995)) (emphasis added).

The Third Circuit Court of Appeals has held in the criminal context that "there is no "`long unquestioned' power of federal district courts" to vacate a judgment procured by fraud in the criminal context." United States v. Washington, 549 F.3d 905, 914 (3d Cir. 2008) (quoting Carlisle v. United States, 517 U.S. 416, 425 (1996)). "Even if federal courts once possessed the power to vacate a criminal judgment of sentence tainted by fraud on the court, that power has now been abrogated by statute and rule." Rodriguez, 2012 WL 162297, at *4 (citing Washington, 549 F.3d at 914; 18 U.S.C. § 3582(c); FED. R. CRIM. P. 35).

The Third Circuit Court of Appeals "has yet to address in a precedential opinion whether a post-conviction motion for relief from judgment under Hazel-Atlas should be treated as a § 2255 motion." Rodriguez, 2012 WL 162297, at *5 (citing United States v. Barbosa, 239 F. A'ppx 758, 760-61 (3d Cir. 2007)). The court in Rodriguez noted that the Third Circuit Court of Appeals' "treatment of the issue in non-precedential orders and opinions has run the gamut," and explained:

Rodriguez, 2012 WL 162297, at *5; United States v. Spikes, Crim. Action No. 08-201-2, 2015 WL 5460567, at *2 (E.D. Pa. Sept. 16, 2015); United States v. Burnett, Crim. Action No. 08-201, 2015 WL 3443946, at *3 (E.D. Pa. May 29, 2015). Whether a post-conviction motion for relief from judgment under Hazel-Atlas should be treated as a § 2255 motion is a "crucial" question because—as the court in Spikes and Burnett explained:

Spikes, 2015 WL 5460567, at *2; Burnett, 2015 WL 3443946, at *3. Given the varying decisions by the court of appeals with respect to the issue, "the Rodriguez court looked to the jurisprudence surrounding Federal Rule of Civil Procedure 60(b) motions, a similar vehicle for attacking a judgment and one with a much more settled body of case law." Spikes, 2015 WL 5460567, at *2 (citing Rodriguez, 2012 WL 162297, at *5).

District courts within the Third Circuit considering the issue and following the jurisprudence surrounding Rule 60(b) motions have instructed:

Spikes, 2015 WL 5460567, at *2; Burnett, 2015 WL 3443946, at *5; Nicholas v. Patrick, Civ. Action No. 06-1680, 2015 WL 2236674, at *1-2 (E.D. Pa. May 13, 2015); Rodriguez, 2012 WL 162297, at *5. The court in Rodriguez explained:

Rodriguez, 2012 WL 162297, at *5 (emphasis added).

2. Analysis

Petitioner in his motion for relief from judgment seeks "relief from this court's judgment in both his criminal retrial . . . and collateral proceedings . . . because they both were based upon fraud on the court by an officer of the court . . . [i.e., Assistant United States Attorneys] Troy Rivetti . . . and . . . Kelly Labby." (ECF No. 1169 at 7.) In other words, petitioner—based upon the same arguments—attacks his underlying judgment of conviction or sentence and a prior judgment entered in post-conviction relief proceedings. The court will separately address petitioner's arguments with respect to the relief he seeks.

i. Relief from the court's judgment in petitioner's criminal retrial

Petitioner in his motion for relief from judgment attacks the judgment entered in his criminal retrial on the following bases:

Each of the foregoing arguments is an attack on the integrity of the underlying criminal proceeding, i.e., petitioner's retrial that resulted in judgments of guilty being entered in his case. The arguments raised by petitioner were either previously raised with this court and the court of appeals or should have been raised with this court or the court of appeals. Under those circumstances—and without further discussion—the motion for relief from judgment must be denied as an unauthorized successive § 2255 motion. The foregoing arguments attack petitioner's criminal convictions and not the prior habeas proceedings. This court is not empowered to address the foregoing arguments unless and until petitioner receives authorization from the Third Circuit Court of Appeals. Petitioner's motion for relief from judgment—to the extent it attacks petitioner's criminal convictions—is a second or successive § 2255 motion and will be denied for lack of subject-matter jurisdiction. Petitioner may seek authorization from the Third Circuit Court of Appeals to file a second or successive § 2255 motion.

ii. Relief from the court's judgment in petitioner's habeas proceedings

a. No after-discovered fraud

Petitioner in his motion for relief from judgment and accompanying submissions argues Rivetti, Labby, and Assistant United States Attorney Jane Dattilo ("Dattilo") "committed fraud on the court in their opposition briefs to petitioner's § 2255 and Rule 59(e) proceeding pertaining to the alleged Jencks Statement documents which affected the integrity of the judicial proceedings." (ECF No. 1185 at 2.) Petitioner alleges that:

Petitioner's claims that the AUSAs assigned to his case committed fraud upon by court by lying to the court in their briefs in opposition to his § 2255 motion and motion for reconsideration are based upon petitioner's arguments that during his retrial: (a) the government did not produce to petitioner or the court materials that constitute Jencks Act material, pursuant to 18 U.S.C. § 3500; (b) the government presented to the court via the representations by Rivetti, who was not a government witness, insufficient evidence to authenticate the allegedly fabricated letter that was allegedly sent to Eberle by Crowe and the allegedly fabricated ten pages of notes by the government agents who allegedly interviewed Crowe; and (c) the court erred by permitting the testimony of Crowe and concluding the allegedly fabricated letter that was allegedly sent to Eberle by Crowe and the allegedly fabricated ten pages of notes by the government agents who allegedly interviewed Crowe were Jencks Act materials that were properly disclosed to petitioner prior to Crowe's testimony. Under those circumstances, the court is not convinced that any portion of petitioner's motion for relief from judgment constitutes a proper Hazel-Atlas action as compared to a second § 2255 motion.

In Hazel-Atlas, the court pointed to "after-discovered fraud" as a basis upon which "relief [may] be granted against judgments regardless of the term of their entry." Hazel-Atlas, 322 U.S. at 244. The bases underlying each of the foregoing arguments asserted by petitioner are the same as the bases underlying each of petitioner's arguments in support of his motion for relief from judgment with respect to petitioner's criminal retrial; in other words, petitioner is attacking his convictions based upon the same theories he raised or could have raised in his § 2255 petition. The fraud he alleges is not "after-discovered fraud." Petitioner does not assert—and the court cannot discern—any other basis upon which to grant petitioner the relief he now seeks.

b. Attack on convictions

Petitioner cannot avoid the strict requirements of 28 U.S.C. § 2255(h) that must be met in order to file a second § 2255 motion by arguing that the government in its filings related to petitioner's § 2255 motion and motion for reconsideration committed fraud upon the court by referring to the court's rulings made during petitioner's retrial. The court views petitioner's arguments with respect to the government's filings related to petitioner's § 2255 motion and motion for reconsideration as merely attempts to circumvent the strict requirements for the filing of a second § 2255 motion set forth in 28 U.S.C. §§ 2255(h). Petitioner in his motion for relief from judgment is attacking the integrity of his underlying criminal convictions and not the integrity of the habeas proceedings, i.e., if the court agrees with petitioner that the government committed fraud upon the court in its submissions related to petitioner's habeas proceedings by reasserting allegedly false statements made during the retrial, the court's ruling would cast doubt upon the integrity of petitioner's underlying criminal convictions including the court's prior rulings, which were affirmed by the Court of Appeals for the Third Circuit.7 Under those circumstances, the entirety of petitioner's motion for relief from judgment constitutes a second or successive § 2255 motion because it attacks the validity of petitioner's criminal convictions and will be denied for lack of subject-matter jurisdiction.8 Petitioner needs to seek authorization from the court of appeals to file a second or successive § 2255 motion.

c. Lack of clear and convincing evidence

Even if this court were to hold that a Hazel-Atlas motion is proper in a criminal case and petitioner's motion for relief from judgment constitutes a proper Hazel-Atlas motion9 (as opposed to a second § 2255 motion), petitioner did not support his accusations with clear and convincing evidence or otherwise show that he is entitled to a hearing during which he would be required to make the extraordinary showing required to prove a claim for fraud upon the court. Hazel-Atlas, 322 U.S. at 239 (the court held a hearing after Hazel asserted in its briefing that the court of appeals' judgment was obtained by fraud and supported those accusations with evidence and the opposing party rebutted those assertions of fraud with counter-evidence). The elements of a Hazel-Atlas fraud on the court independent action are: "(1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) that in fact deceives the court." Herring, 424 F.3d at 390. This court previously held that:

(ECF No. 1038 at 8.) The evidence10 and argument offered by petitioner in support of his motion for relief from judgment does not show by clear and convincing evidence that the government intentionally engaged in fraud, and a hearing under Hazel-Atlas is not otherwise warranted in this case, i.e., there are no disputes of material fact with respect to petitioner's assertions of fraud. Hazel-Atlas, 322 U.S. at 239; (ECF Nos. 1168-1-1168-7.) Petitioner's accusations of fraud are not sufficient to warrant the relief he now seeks. The evidence presented in Hazel-Atlas was specific and detailed and showed that counsel for one of the parties fabricated a material piece of evidence and paid a third party to conceal the fabrication. Hazel-Atlas, 322 U.S. at 241. Petitioner in this case presented to the court the documents in issue and letters from his counsel showing that the government requested information from another one of petitioner's cellmates, but did not present any specific or detailed information to show that the AUSAs assigned to petitioner's case actually fabricated the Jencks Act material presented to the court and petitioner.11 Based upon the foregoing, even if a Hazel-Atlas action may be brought in a criminal case and petitioner's motion for relief from judgment is not a second § 2255 motion, petitioner did not point to clear and convincing evidence that the AUSAs assigned to his case committed fraud upon this court or otherwise show that he is entitled to a hearing before this court. Hazel-Atlas, 322 U.S. at 239.

IV. Conclusion

Petitioner's motion for relief from judgment is a second or successive § 2255 motion. Petitioner did not receive authorization from the Court of Appeals for the Third Circuit to file a second or successive § 2255 motion. This court, therefore, is without subject-matter jurisdiction to decide petitioner's motion. The motion for relief from judgment will, therefore, be DENIED. Petitioner may seek authorization from the court of appeals to file a second or successive § 2255 motion in accordance with 28 U.S.C. §§ 2244 and 2255(h). An appropriate order will be entered.

V. Certificate of Appealability

When a district court issues a final order denying a § 2255 motion, the court must also make a determination about whether a certificate of appealability ("COA") should issue. Otherwise, the clerk of the court of appeals shall remand the case to the district court for a prompt determination as to whether a certificate should issue. See 3rd Cir. LAR 22.2.

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

Based upon the § 2255 motion, files and records of the instant case, and for the reasons set forth herein, the court finds that petitioner did not show a substantial denial of a constitutional right. Accordingly, a COA should not issue.