Washburn v USA
Filing
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ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action CR 12-41-LRR) filed by Donald K Washburn. A certificate of appealability will not issue. Signed by Chief Judge Linda R Reade on 11/14/13. (ksy)(copy w/NEF to Plf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
DONALD KEITH WASHBURN,
Movant,
No. C13-0112-LRR
No. CR12-0041-LRR
vs.
UNITED STATES OF AMERICA.
ORDER
____________________________
This matter appears before the court on Donald Keith Washburn’s motion to vacate,
set aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). Donald
Keith Washburn (“the movant”) filed such motion on October 18, 2013. In the underlying
criminal case, judgment entered against the movant on December 13, 2012, the movant
filed a notice of appeal on December 27, 2012, the movant filed a notice of dismissal on
February 4, 2013, and the Eighth Circuit Court of Appeals dismissed the movant’s appeal
on February 5, 2013. In a related case, that is, United States v. Washburn, Case #: 1:11cr-00100-LRR (N.D. Iowa 2012), judgment entered against the movant on August 24,
2012, the movant filed a notice of appeal on August 31, 2012, and the Eighth Circuit Court
of Appeals resolved the movant’s direct appeal on August 27, 2013. Edwin Marger was
retained by the movant, represented the movant in both criminal actions and still represents
the movant. In light of the record, it is clear that the movant’s four grounds for relief are
procedurally defaulted; the movant is unable to assert claims that could have been raised
and addressed by the court and the Eighth Circuit Court of Appeals. See McNeal v. United
States, 249 F.3d 747, 749 (8th Cir. 2001) (discussing when claims are procedurally
defaulted); United States v. Samuelson, 722 F.2d 425, 427 (8th Cir. 1983) (concluding that
a collateral proceeding is not a substitute for a direct appeal and refusing to consider
matters which could have been raised on direct appeal). Further, the reason offered to
excuse his procedural default is without merit because any of the court’s rulings, including
the ruling related to his in forma pauperis status, could have been addressed by the Eighth
Circuit Court of Appeals. Based on the foregoing, the movant’s motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 is denied. A certificate of
appealability under 28 U.S.C. § 2253 will not issue.
IT IS SO ORDERED.
DATED this 14th day of November, 2013.
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