Opinion
NO. CR-08-0137-WFN-29 NO. CV-11-0332-WFN
05-24-2012
UNITED STATES OF AMERICA, Respondent, v. DANIEL ALLEN FLAHERTY, Movant.
ORDER
Before the Court is Mr.Flaherty's pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence (ECF No. 2357). The Court issued an Order on December 14, 2011, which permitted Defendant to amend his original § 2255 Motion and accepted Mr. Flaherty's supplement briefing the statute of limitations issue. Mr. Flaherty filed a Memorandum of Law on January 9, 2012, that further explained his position on the statute of limitation and his § 2255 Motion.
DISCUSSION
Mr. Flaherty argues that the Supreme Court's decision in Bond v. United States, 131 S. Ct. 2355 (2011) created a newly recognized right permitting him to file a § 2255 Motion attacking his underlying conviction and permitting filing of a § 2255 after expiration of the one year statute of limitations. The Court disagrees. Bond did not create a newly recognized right that would extend the statute of limitations as it had no effect on the statute of conviction. Further, Mr. Flaherty did not plead facts sufficient to provide a basis for equitable tolling. The Court has reviewed the file and the Motion and concludes the Motion is untimely.
CERTIFICATE OF APPEALABILITY
An appeal of this Order may not be taken unless this Court or a Circuit Justice issues a certificate of appealability, finding that "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (West 2004). This requires a showing that "reasonable jurists would find the district Court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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." Id. A certificate of appealability should not be granted unless both components, one directed at the underlying constitutional claims, and the second directed at the court's procedural holding, are satisfied. Id.
Based on the Court's preceding analysis, the Court concludes that Mr. Flaherty has made a substantial showing of a denial of a constitutional right due to the lack of case law regarding the impact of Bond. Thus, a certificate of appealability should issue. Accordingly,
IT IS ORDERED that Mr. Flaherty's 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence, filed December 5, 2012, ECF No. 2357, is DENIED with prejudice.
The District Court Executive is directed to:
• File this Order and provide copies to Mr. Flaherty and to the Government;
• Inform the Ninth Circuit Court of Appeals that if the Movant files a Notice of Appeal that a certificate of appealability is GRANTED; and
• CLOSE the corresponding civil file, CV-11-0332-WFN.
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WM. FREMMING NIELSEN
SENIOR UNITED STATES DISTRICT JUDGE