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