Halverson v. United States of America

Filing 19

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

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9

DEREK M. HALVERSON,

10
11
12
13

Petitioner,
v.

CASE NO. C16-1179-JCC
ORDER DENYING CERTIFICATE
OF APPEALABILITY

UNITED STATES OF AMERICA,
Respondent.

14
15

This matter comes before the Court on the referral notice from the United States Court of

16

Appeals for the Ninth Circuit (Dkt. No. 18). The Ninth Circuit referred this matter for the limited

17

purpose of determining whether this Court should grant or deny a certificate of appealability.

18

This Court previously dismissed with prejudice Petitioner Derek Halverson’s motion to vacate,

19

set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Dkt. No. 12.) The Court found

20

that Petitioner’s motion was time barred and that he had not demonstrated sufficient cause for his

21

procedural default. (Id. at 2.)

22

A petitioner seeking post-conviction relief under § 2255 may appeal a district court’s

23

dismissal of his federal habeas petition only after obtaining a certificate of appealability from a

24

district or circuit judge. 28 U.S.C. § 2253(c). A certificate of appealability may issue only where

25

a petitioner has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.

26

§ 2253(c)(3). This is satisfied “by demonstrating that jurists of reason could disagree with the
ORDER DENYING CERTIFICATE OF
APPEALABILITY
PAGE - 1

1

district court’s resolution of his constitutional claims or that jurists could conclude the issues

2

presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537

3

U.S. 322, 327 (2003).

4

Here, no reasonable jurist could disagree that Petitioner’s motion is time barred and that

5

he has not demonstrated sufficient cause for his procedural default. Petitioner filed his motion

6

four months after the one-year statute of limitations had tolled. (Compare CR14-0164-JCC, Dkt.

7

No. 41 (sentenced on March 13, 2015) with C16-1179-JCC, Dkt. No. 1 (section 2255 motion

8

filed on July 28, 2016)). Moreover, Petitioner’s argument that his claims are not time barred

9

because of alleged newly discovered evidence has no merit. (See Dkt. No. 1 at 2.) Petitioner does

10

not state what evidence might be new, and does not offer any arguments as to how these

11

unidentified facts might provide a basis to reverse his conviction.

12
13
14

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

15
16
17

John C. Coughenour
UNITED STATES DISTRICT JUDGE

18
19
20
21
22
23
24
25
26
ORDER DENYING CERTIFICATE OF
APPEALABILITY
PAGE - 2