Halverson v. United States of America
Filing
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ORDER denying 18 Motion for Certificate of Appealability by U.S. District Judge John C Coughenour.(CDA)(cc: USCA via email; plaintiff via U.S. Mail)
THE HONORABLE JOHN C. COUGHENOUR
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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DEREK M. HALVERSON,
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Petitioner,
v.
CASE NO. C16-1179-JCC
ORDER DENYING CERTIFICATE
OF APPEALABILITY
UNITED STATES OF AMERICA,
Respondent.
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This matter comes before the Court on the referral notice from the United States Court of
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Appeals for the Ninth Circuit (Dkt. No. 18). The Ninth Circuit referred this matter for the limited
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purpose of determining whether this Court should grant or deny a certificate of appealability.
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This Court previously dismissed with prejudice Petitioner Derek Halverson’s motion to vacate,
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set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Dkt. No. 12.) The Court found
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that Petitioner’s motion was time barred and that he had not demonstrated sufficient cause for his
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procedural default. (Id. at 2.)
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A petitioner seeking post-conviction relief under § 2255 may appeal a district court’s
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dismissal of his federal habeas petition only after obtaining a certificate of appealability from a
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district or circuit judge. 28 U.S.C. § 2253(c). A certificate of appealability may issue only where
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a petitioner has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
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§ 2253(c)(3). This is satisfied “by demonstrating that jurists of reason could disagree with the
ORDER DENYING CERTIFICATE OF
APPEALABILITY
PAGE - 1
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district court’s resolution of his constitutional claims or that jurists could conclude the issues
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presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
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U.S. 322, 327 (2003).
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Here, no reasonable jurist could disagree that Petitioner’s motion is time barred and that
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he has not demonstrated sufficient cause for his procedural default. Petitioner filed his motion
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four months after the one-year statute of limitations had tolled. (Compare CR14-0164-JCC, Dkt.
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No. 41 (sentenced on March 13, 2015) with C16-1179-JCC, Dkt. No. 1 (section 2255 motion
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filed on July 28, 2016)). Moreover, Petitioner’s argument that his claims are not time barred
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because of alleged newly discovered evidence has no merit. (See Dkt. No. 1 at 2.) Petitioner does
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not state what evidence might be new, and does not offer any arguments as to how these
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unidentified facts might provide a basis to reverse his conviction.
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Therefore, the Court DENIES a certificate of appealability. The Clerk is DIRECTED to
forward the record and this order to the Ninth Circuit.
DATED this 25th day of May 2017.
A
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John C. Coughenour
UNITED STATES DISTRICT JUDGE
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ORDER DENYING CERTIFICATE OF
APPEALABILITY
PAGE - 2
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