Stephenson v. United States of America

Filing 12

ORDER denying 10 Motion for Certificate of Appealability, signed by Judge Ronald B. Leighton.(DN) Modified on 10/11/2012 (DN). (cc to pltf)

1

HONORABLE RONALD B. LEIGHTON

2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

7
8

DAVID CARROLL STEPHENSON,

CASE NO. C12-5581 RBL

9
Petitioner- Appellant,

(9TH CIR. NO. 12-35787)

10
v.

ORDER DENYING CERTIFICATE
OF APPEALABILITY

11
UNITED STATES OF AMERICA,
12

[DKT. #10]
Respondent- Appellee.

13
14

THIS MATTER is before the Court on limited remand by the Ninth Circuit to determine

15 whether this Court should issue a Certificate of Appealability to Petitioner Stephenson [Dkt. #10;
16 citing United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997)]. Mr. Stephenson has since
17 filed his own Motion seeking a Certificate of Appealability [Dkt. #11].
18

The district court should grant an application for a Certificate of Appealability only if the

19 petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
20 2253(c)(3). To obtain a Certificate of Appealability under 28 U.S.C. § 2253(c), a habeas
21 petitioner must make a showing that reasonable jurists could debate whether, or agree that, the
22 petition should have been resolved in a different manner or that the issues presented were
23
24

(9TH CIR. NO. 12-35787) - 1

1 adequate to deserve encouragement to proceed further. Slack v. McDaniel, 120 S.Ct. 1595,
2 1603-04 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
3

When the court denies a claim on procedural grounds, the petitioner must show that

4 jurists of reason would find it debatable whether the petition states a valid claim of the denial of
5 a constitutional right and that jurists of reason would find it debatable whether the district court
6 was correct in its procedural ruling. Slack v. McDaniel, 120 S.Ct. at 1604.
7

This court dismissed the petition as time-barred under 28 U.S.C. § 2244(d). The case

8 was therefore dismissed on procedural grounds.
9

Petitioner’s claim is that this court (and, presumably, the Ninth Circuit) lacks jurisdiction

10 over him and that his conviction is “jurisdictionally void.” [See, most recently, Dkt. # 11] He
11 apparently claims that because this is so, the judgment against him never became final and,
12 therefore, that the one year time limit of 28 U.S.C. § 2244(d) has not commenced running, much
13 less expired.
14

There is nothing in the record that would support a conclusion that jurists of reason

15 would find it debatable whether the petition states a valid claim of the denial of a constitutional
16 right.
17

The Petitioner’s Motion for a Certificate of Appealability [Dkt. #11] is therefore

18 DENIED, and this Court will not issue such a Certificate.
19

IT IS SO ORDERED.

20

Dated this 11th day of October, 2012.

22

A

23

Ronald B. Leighton
United States District Judge

21

24

[DKT. #10] - 2