Nos. 2:16-CV-00436-DAK and 2:07-CR-00571-DAK-1, D. Utah
KELLY, HOLMES, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
J. Kelly, Jr. Circuit Judge
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).
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.
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.
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.
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).
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)).
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.
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.
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 § 924(c)(3)(B), but whether the
Supreme Court itself has recognized the right on which Mr.