Chon v. United States of America

Filing 39

MEMORANDUM DECISION denying 37 Petitioner's Motion for Default Judgment and denying 38 Petitioner's Motion for Certificate of Appealability. Signed by Judge Ted Stewart on 12/17/12. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

TAE H. CHON,
Petitioner,

MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION FOR DEFAULT
JUDGMENT AND DENYING
PETITIONER’S MOTION FOR
CERTIFICATE OF APPEALABILITY

vs.

UNITED STATES OF AMERICA,

Civil Case No. 2:09-CV-654 TS

Respondent.

Criminal Case No. 2:01-CR-487 TS

This matter is before the Court on Petitioner’s Motion for Default Judgment and Motion
for Certificate of Appealability (“COA”). For the reasons discussed below, the Court will deny
both Motions.
I. BACKGROUND
The complete background of Petitioner’s criminal case and his motion under 28 U.S.C. §
2255 have been addressed in prior orders and need not be repeated here. The instant Motions
arise out of the Court’s recent denial of Petitioner’s motions, filed pursuant to Fed. R. Civ. P. 59,
60(d), and 52(b). Petitioner has since appealed the Court’s decision on those motions.
1

II. DISCUSSION
A.

MOTION FOR DEFAULT JUDGMENT
Petitioner’s Motion for Default Judgment was filed both in this Court and before the

Tenth Circuit Court of Appeals. The Tenth Circuit Court of Appeals denied his Motion, to the
extent it sought relief from that court.
In his Motion for Default Judgment, Petitioner complains that Respondent did not
respond to Petitioner’s rule 59, 60(d), and 52(b) motions. It is true that Respondent did not
respond to these motions. However, the Court was able to rule on the motions without a
response from Respondent. Therefore, the Court will deny Petitioner’s Motion for Default
Judgment.
B.

MOTION FOR CERTIFICATE OF APPEALABILITY
28 U.S.C. § 2253(c)(1)(B) provides: “Unless a circuit justice or judge issues a certificate

of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a
proceeding under section 2255.” Under 2253(c)(2), a certificate of appealability may be issued
“only if the applicant has made a substantial showing of the denial of a constitutional right.”1
To make this showing, Petitioner must demonstrate “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further.”2

1

28 U.S.C. § 2253(c)(2).

2

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted).
2

When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA 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.3
Considering this standard, the Court finds that Petitioner is not entitled to a certificate of
appealability. Therefore, his Motion will be denied.
III. CONCLUSION
It is therefore
ORDERED that Petitioner’s Motion for Default Judgment (Docket No. 152 in Case No.
2:01-CR-487 and Docket No. 37 in Case No. 2:09-CV-654) is DENIED. It is further
ORDERED that Petitioner’s Motion for Certificate of Appealability (Docket No. 153 in
Case No. 2:01-CR-487 and Docket No. 38 in Case No. 2:09-CV-654) is DENIED.
DATED December 17, 2012.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

3

Slack v. McDaniel, 529 U.S. 473, 484 (2000).
3