Dale Michael Hanson v. Mike Mahoney, Warden

Dale Michael Hanson, whose petition for a writ of habeas corpus challenging his Montana conviction for sexual assault and deviate sexual conduct was dismissed by a-magistrate judge, brings two issues before this court. First, he contends that the magistrate judge who adjudicated his petition by consent was without authority to issue a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253 and, therefore, he asks this court to rule that his request for a COA must be returned to the district court for consideration by an Article III judge. Second, he contends, in the alternative, that the magistrate judge erred in holding that he procedurally defaulted his claim that the state trial court’s instruction on unanimity was defective under State v. Weaver, 290 Mont. 58 , 964 P.2d 718 (1998). Because we hold that magistrate judges are authorized to issue COAs, and we agree that Hanson’s claim for relief is procedurally defaulted, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Hanson was convicted in Montana of sexual assault and deviate sexual conduct in 1995. At trial, the district court instructed the jury that a unanimous verdict was required to convict Hanson, but…