                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                               June 19, 2020
                         _________________________________
                                                                             Christopher M. Wolpert
                                                                                 Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                              No. 19-8081
                                                      (D.C. Nos. 2:18-CV-00101-ABJ &
 WILLIAM J. BATTON,                                        1:09-CR-00030-AJB-1)
                                                                  (D. Wyo.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges.
                  _________________________________

       Defendant-Appellant William Batton seeks a Certificate of Appealability (COA)

to challenge the district court’s denial of his second or successive habeas petition under

28 U.S.C. § 2255. To obtain a COA, he must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2).

       Mr. Batton was convicted of interstate transport of a minor with intent to engage

in illegal sexual acts in violation of 21 U.S.C. § 2423(a) and sentenced to 360 months.

This court affirmed the conviction on direct appeal. United States v. Batton, 602 F.3d

1191 (10th Cir. 2010). Mr. Batton sought postconviction relief under § 2255, arguing



       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that his right to due process was violated and that his counsel was ineffective. The

district court denied his motion and denied his motion for a COA. Batton v. United

States, Nos. 11-CV-259-J & 09-CR-30-J, 2012 WL 12953677 (D. Wyo. Oct. 18, 2012)

(unpublished). This court denied Mr. Batton’s request for a COA on that ruling. United

States v. Batton, 527 F. App’x 686 (10th Cir. 2013) (unpublished). Mr. Batton then

moved for a new trial under Federal Rule of Criminal Procedure 33, which the district

also denied. United States v. Batton, 09-CR-30-J, 2015 WL 13404303 (D. Wyo. July 6,

2015) (unpublished). This court affirmed. United States v. Batton, 687 F. App’x 680

(10th Cir. 2017) (unpublished).

       Mr. Batton then sought this court’s authorization to file a second or successive

petition to vacate his sentence. Mr. Batton’s argument arose out of undisclosed and

undiscovered use of Eye Movement Desensitization and Reprocessing (EMDR) therapy

on the government’s primary witness: the victim. Performing the required gatekeeping

function, this court granted authorization as to claims under Brady v. Maryland, 373 U.S.

83 (1963), and Strickland v. Washington, 466 U.S. 668 (1984), but “express[ed] no

opinion on the merits of the claims or any other issue (such as timeliness).” In re:

William Batton, No. 18-8022 (10th Cir. June 13, 2018). The district court denied the

petition as untimely and unsupported on the merits. 3 R. 255.

       To obtain a certificate of appealability, Mr. Batton must first demonstrate that the

district court’s resolution of the timeliness issue was reasonably debatable, as well as its

resolution of constitutional claims. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The

time limit applicable to this case is 28 U.S.C. § 2255(f)(4), which provides that the

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petition must be filed within one year of “the date on which the facts supporting the claim

or claims presented could have been discovered through the exercise of due diligence.”

By his own admission, Mr. Batton received access to psychotherapy records indicating

the use of EMDR on August 6, 2014. Aplt. Br. at 11. He did not file his petition based

on the discovery of these materials until 2018, four years later. 3 R. 5. Mr. Batton’s

petition is clearly untimely; the district court’s resolution of this issue is not reasonably

debatable notwithstanding Mr. Batton’s arguments to the contrary.

       We DENY a COA, DENY IFP and DISMISS this appeal.


                                                Entered for the Court


                                                Paul J. Kelly, Jr.
                                                Circuit Judge




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