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United States v. Kundo

United States Court of Appeals, Tenth Circuit

July 20, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MALCO KIYABO KUNDO, Defendant-Appellant.

         D.C. Nos. 2:16-CV-00436-DAK and 2:07-CR-00571-DAK-1, D. Utah

          Before KELLY, HOLMES, and MORITZ, Circuit Judges.

          ORDER DENYING CERTIFICATE OF APPEALABILITY

          Paul J. Kelly, Jr. Circuit Judge

         Defendant-Appellant Malco Kiyabo Kundo, a federal inmate, seeks a certificate of appealability ("COA") to appeal from the district court's denial and dismissal of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Kundo v. United States, No. 2:16-CV-436-DAK, 2016 WL 3079755 (D. Utah May 31, 2016). Because we conclude his motion is time barred, we deny a COA and dismiss the appeal. 28 U.S.C. § 2255(f)(3).

         Background

         In January 2008, Mr. Kundo pled guilty to (1) armed carjacking in violation of 18 U.S.C. § 2119; (2) brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); and (3) obstruction of commerce by robbery in violation of 18 U.S.C. § 1951. 2 R. 9-14; 4 R. 3-17. On April 8, 2008, he was sentenced to 147 months' imprisonment and 60 months' supervised release. 2 R. 53-55.

         Mr. Kundo chose not to directly appeal his sentence. Thus, the judgment entered on April 8, 2008, became final 14 days later on April 22, 2008, and his normal time to file a habeas motion expired on April 22, 2009. 28 U.S.C. § 2255(f)(1); Fed. R. App. P. 4(b)(1)(A). Mr. Kundo, however, filed his § 2255 motion with the district court on May 23, 2016. 1 R. 4. He contended that his motion was timely under § 2255(f)(3), which states that the one-year limitation period shall run from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." The district court agreed that the Supreme Court recognized a new rule in Johnson v. United States, 135 S.Ct. 2551 (2015), which was then made retroactive in Welch v. United States, 136 S.Ct. 1257 (2016), and thus that Mr. Kundo's motion was timely. See Kundo, 2016 WL 3079755, at *2.

         The district court then rejected Mr. Kundo's arguments on the merits. Id. at *3. Mr. Kundo argued that the residual clause of the definition of "violent felony" in 18 U.S.C. § 924(e)(2)(B)(ii), which was struck down by the Supreme Court in Johnson as unconstitutionally vague, is indistinguishable from the risk- of-force clause of the definition of "crime of violence" in § 924(c)(3)(B). Thus, according to Mr. Kundo, his enhanced sentence for brandishing a firearm during a crime of violence - carjacking - was therefore imposed in violation of the Constitution. The district court disagreed, finding that because the clause in § 924(c) is applied to real-world conduct, it did not suffer from the constitutional deficiencies recognized in Johnson. Kundo, 2016 WL 3079755, at *3. The court then denied Mr. Kundo a COA, which he now seeks from this court.

         Discussion

          To obtain a COA, Mr. Kundo must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to [obtain a COA] is straightforward: The petitioner must demonstrate 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). However, we need not follow the course set out by the district court; instead, we may deny a COA on any ground supported by the record, even one not relied on by the district court. See Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005). "Accordingly, we may deny a COA if there is a plain procedural bar to habeas relief, even though the district court did not rely on that bar." Id. The timeliness of a § 2255 motion is reviewed de novo. United States v. Denny, 694 F.3d 1185, 1189 (10th Cir. 2012).[1]

         Under 28 U.S.C. § 2255(f)(3), Mr. Kundo's motion for relief would be timely only if the right on which he relies "was initially recognized by the Supreme Court." Because Mr. Kundo relies on the right recognized by the Supreme Court in Johnson, the timeliness question boils down to whether Johnson directly controls or whether Mr. Kundo is actually seeking a new right not yet recognized by the Supreme Court. A right is considered "new" if it is "not dictated by precedent." Chaidez v. United States, 568 U.S. 342, 347 (2013) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). And a right is "dictated by precedent" only if it is "apparent to all reasonable jurists." Id. (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997)).

         The new rule the Supreme Court announced in Johnson was that the residual clause of the Armed Career Criminal Act was unconstitutionally vague. 135 S.Ct. at 2563. The residual clause at issue defined "violent felony" as any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The Court explained that there were two features of the clause that made its application unconstitutionally vague. Johnson, 135 S.Ct. at 2557. First, by tying the judicial assessment of risk to a "judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements, " the provision resulted in "grave uncertainty about how to estimate the risk posed by a crime." Id. Second, by "apply[ing] an imprecise 'serious potential risk' standard . . . to a judge-imagined abstraction, " it left too much uncertainty about how much risk is required for a crime to be classified as violent. Id. at 2558.

         The statute at issue in Mr. Kundo's case is similar, but not the same. Its risk-of-force clause defines a "crime of violence" as a felony that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B). We have recently applied Johnson to invalidate the application of an identically-worded definition of "crime of violence" in 18 U.S.C. § 16(b). See Golicov v. Lynch, 837 F.3d 1065, 1075 (10th Cir. 2016).

         Relying on our decision in Golicov, Mr. Kundo contends that "the result here must be the same." Aplt. Br. at 7. But the threshold timeliness question is not whether this court should (or one day will) extend its ruling in Golicov to ยง 924(c)(3)(B), but whether the Supreme Court itself has recognized the right on which Mr. Kundo ...


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