Filed: May 08, 2014
Latest Update: May 08, 2014
Summary: ORDER ROGER L. HUNT, District Judge. Following the court's denial of Defendant's Motion for Expert Witness and Evidentiary Hearing (#113, filed Sep. 30, 2013) and Motion Pursuant to 28 U.S.C. 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (#115, filed Sep. 30, 2013), Defendant Wilson filed a Motion for Certificate of Appealability. (#127, filed May 2, 2014). Wilson has not filed a Notice of Appeal. This court will not enter a certificate of appealability becaus
Summary: ORDER ROGER L. HUNT, District Judge. Following the court's denial of Defendant's Motion for Expert Witness and Evidentiary Hearing (#113, filed Sep. 30, 2013) and Motion Pursuant to 28 U.S.C. 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (#115, filed Sep. 30, 2013), Defendant Wilson filed a Motion for Certificate of Appealability. (#127, filed May 2, 2014). Wilson has not filed a Notice of Appeal. This court will not enter a certificate of appealability because..
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ORDER
ROGER L. HUNT, District Judge.
Following the court's denial of Defendant's Motion for Expert Witness and Evidentiary Hearing (#113, filed Sep. 30, 2013) and Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (#115, filed Sep. 30, 2013), Defendant Wilson filed a Motion for Certificate of Appealability. (#127, filed May 2, 2014). Wilson has not filed a Notice of Appeal.
This court will not enter a certificate of appealability because, as noted in the order of denial, Wilson's § 2255 petition was untimely and not subject to equitable tolling. Wilson failed to make "a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing." Bills v. Clark, 628 F.3d 1092, 1100-01 (9th Cir. 2010). The evidence showed that Wilson was not mentally impaired as he made cogent requests for medical assistance and filed letters and motions with the court pursuing other legal remedies. Accordingly, Wilson's request for an evidentiary hearing was frivolous, he was not entitled to an evidentiary hearing or equitable tolling, and his § 2255 petition was untimely.
IT IS THEREFORE ORDERED that this court will not issue a certificate of appealability in this matter.
