United States District Court, D. Utah, Central Division
AMENDED  ORDER AND MEMORANDUM DECISION
RE: CERTIFICATE OF APPEALABILITY
CAMPBELL U.S. DISTRICT COURT JUDGE.
and 2016, Petitioners Eric Kamahele, Kepa Maumau, and
Sitamipa Toki filed Motions for Relief Under 28 U.S.C. §
2255 (collectively, Petitions). In 2017, the court denied the
§ 2255 Motions (“§ 2255
Order”). Because the Petitioners wish to appeal
that decision, they have moved for a Certificate of
Appealability (COA), which is required by 28 U.S.C. §
2253(c) before proceeding to the Tenth Circuit Court of
reasons set forth below, the court (1) DENIES Mr.
Maumau's and Mr. Toki's request for a COA; (2) DENIES
Mr. Kamahele's request for a COA on two of the three
asserted bases for relief (referred to below as his Johnson
and “actual innocence” claims) but GRANTS his
request for a COA on Claims One and Two concerning withdrawal
of his guilty plea.
court denies a § 2255 petition, the petitioner does not
have an automatic right to appeal that decision. Instead, the
petitioner must obtain a certificate of appealability from
either the district court or the court of appeals. 28 U.S.C.
obtain a COA, the petitioner must make a “substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When reviewing a COA motion, the
court does not fully consider “‘the factual or
legal bases adduced in support of the claims.'”
Buck v. Davis, 137 S.Ct. 759, 773 (2017) (quoting
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).
Rather, the court conducts a “‘threshold inquiry
into the underlying merit'” of those claims.
Id. at 774 (quoting Miller-El, 537 U.S. at
court should issue a COA only if “‘jurists of
reason could disagree with the district court's
resolution'” of the claims raised in the §
2255 petition or “‘could conclude the issues
presented are adequate to deserve encouragement to proceed
further.'” United States v. Springer, 875
F.3d 968, 972 (10th Cir. 2017) (quoting Buck, 137
S.Ct. at 773). If “reasonable jurists would not find
the district court's decision on these issues debatable
or wrong, ” the court should deny the COA motion.
Jones v. Warrior, 805 F.3d 1213, 1222 (10th Cir.
the court denies a § 2255 petition on procedural grounds
(for example, finding that a claim is time-barred), the
petitioner has an additional hurdle. He can obtain a COA only
if he shows that both the procedural issue and the underlying
claim are reasonably debatable. Springer, 857 F.3d at 981.
2011, after a jury trial, the Petitioners were found guilty
of several offenses, including racketeering in violation of
RICO, Hobbs Act robberies (18 U.S.C. § 1951), committing
violent crimes in aid of racketeering (VICAR, 18 U.S.C.
§ 1959), and using a firearm in furtherance of those
crimes (18 U.S.C. § 924(c)). The convictions were based
in part on finding each Petitioner guilty of underlying
crimes of violence or, stated another way, predicate acts.
2014, they lost their direct appeal to the Tenth Circuit. See
United States v. Kamahele, 478 F.3d 984 (10th Cir.
2015, Mr. Kamahele and Mr. Maumau filed pro se § 2255
petitions, which were amended, with assistance of appointed
counsel, in 2016. (See Kamahele § 2255 Petition, as
amended, ECF No. 1 (“Initial § 2255
Petition”) & ECF No. 10 (“Amended § 2255
Petition”) in 2:15-cv-506-TC; Maumau § 2255
Petition, as amended, ECF No. 1 (“Initial § 2255
Petition”) & ECF No. 10 (“Amended § 2255
Petition”) in 2:15-cv-600-TC.) Mr. Toki filed his
petition in 2016 (he too was represented by appointed
counsel). (See Toki § 2255 Petition, ECF No. 1 in
their § 2255 Petitions, they asserted claims arising out
of three distinct areas of law. First, Mr. Kamahele and Mr.
Maumau raised ineffective-assistance-of-counsel claims (the
“IAC claims”). Second, all three Petitioners
challenged their convictions based on the newly recognized
right announced by the United States Supreme Court in
Johnson v. United States, 135 S.Ct. 2551 (2015) (the
Johnson claims). Finally, they asserted legal innocence of
the charges in the Second Superseding
Indictment (the “actual innocence”
court, in its § 2255 Order, rejected the IAC claims on
their merits, denied the Johnson claims as time-barred, and
denied the actual innocence claims on the ground that the
Petitioners were not entitled to relief under that narrow
doctrine. Now the court denies their Motion for a COA with
the exception of Mr. Kamahele's IAC claims, for which the
court issues a COA.
PETITIONERS' JOHNSON AND ACTUAL INNOCENCE CLAIMS
§ 2255 Order, the court held that the Johnson claims
(and, by association, the actual-innocence claims based on
Johnson) were procedurally barred-i.e., they were filed after
the statute of limitations expired.
filed under § 2255 are subject to a one-year statute of
limitations. 28 U.S.C. § 2255(f). That one-year period
begins to run from the latest of four dates, two of which are
relevant here: “the date on which the judgment of
conviction becomes final, ” or “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.” Id. § 2255(f)(1),
(3). The Petitioners assert that this court's
statute-of-limitations ruling was incorrect, and, for purpose
of their COA Motion, that the ruling is at least reasonably
debatable. The court disagrees for the reasons set forth
THE JOHNSON CLAIMS
the Petitioners filed their Johnson claims more than one year
after their convictions became final, they did file the
claims within one year of the date the United States Supreme
Court issued its 2015 decision in Johnson. Accordingly, they
relied on the “newly recognized” and
“retroactively applicable” rule announced in that
decision to argue that their Johnson claims are not
procedurally defaulted. But the court, in its § 2255
Order, held that they were not asserting the right recognized
in Johnson and so those claims were procedurally defaulted.
For the reasons set forth below, the Petitioners have not met
their burden to show that reasonable jurists would find that
decision wrong, particularly in light of recent Tenth Circuit
Johnson, the Supreme Court held that the language of the
“residual clause” in the Armed Career Criminal
Act (ACCA) is unconstitutionally vague. Johnson, 135 S.Ct. at
2557. Although the Petitioners' convictions did not
involve application of the ACCA, they contended that the
Johnson ruling extends to the other statutes under which they
were convicted because those statutes contain language that
is almost identical to the unconstitutional language in the
issue addressed by the court in its order denying the §
2255 Motions was “whether Petitioners assert[ed] the
same right announced in Johnson, or whether they instead
assert a new right that the Supreme Court has yet to
recognize.” (§ 2255 Order at 37.) There the court
held that the Petitioners were asserting a different right.
“Johnson limits itself to the ACCA. . . . And because
Johnson does not dictate the right Petitioners assert [under
statutes other than the ACCA], they cannot avail themselves
of § 2255(f)(3), making their Johnson-based challenges
time-barred.” (Id. at 37-38; see also
Id. at 34 (quoting § 2253(f), under which the
one-year statute of limitations, in relevant circumstances,
“begins to run from the ‘date on which the right
asserted was initially recognized by the Supreme
their COA Motion, Petitioners assert that “reasonable
jurists” could find the court's ruling on this
issue debatable or wrong. But their argument is foreclosed by
the recent Tenth Circuit decision in United States v.
Greer, 881 F.3d 1241 (10th Cir. 2018).
Greer, a § 2255 petitioner unsuccessfully attempted to
apply Johnson to an identically-worded clause in a mandatory
sentencing guideline under which his sentence was enhanced.
Because the ACCA also enhances sentences, Mr. Greer argued
that Johnson naturally extended to the language in the
sentencing guideline. The issue in Greer was whether the
petitioner was asserting the same right newly recognized by
the Supreme Court in Johnson (an issue essentially the same
as that addressed by this court in the § 2255 Order).
The Tenth Circuit held that Mr. Greer was not asserting the
same right because he “was not sentenced under the
ACCA.” Id. at 1247. In other words, he was not
asserting a “true Johnson claim.” Id. at
1248. Significantly, the Tenth Circuit said that “the
only right recognized by the Supreme Court in Johnson was a
defendant's right not to have his sentence increased
under the residual clause of the ACCA.” Id.
Greer, the Petitioners here are not asserting a “true
Johnson claim” (i.e., they are not asserting a right to
be free from the ACCA's sentence enhancement provision).
Accordingly, they may not tie their claims to the date
Johnson was issued. Given the clear language in Greer and the
undisputed fact that the claims would be time-barred if not
tied to the trigger dates in § 2255(f)(3) and Johnson,
reasonable jurists would not debate the conclusion that the
Petitioners' Johnson claims are time-barred under §
2255(f)(3). For that reason, the court denies their request
for a certificate of appealability on those claims.
“ACTUAL INNOCENCE” CLAIMS
Petitioners also relied on an alternative avenue of relief
called “actual innocence.” The court referred to
their alternative requests for relief as “actual
innocence” claims. In those claims, they did not ask
for relief from a procedural bar, which is the well-settled
use of the “actual innocence” exception. Instead,
they asserted that they are actually innocent of their
convictions because their underlying crimes do not qualify as
crimes of violence under the law and facts in place at the
time they were convicted. In essence, they seek a reversal of
their conviction without further habeas proceedings.
law defining the scope of the “actual innocence”
exception does not allow such relief. It is axiomatic that an
actual-innocence claim is not a freestanding claim for relief
but rather is a gateway allowing a petitioner to bypass a
procedural bar to argue the merits of a habeas claim. The
Supreme Court has not held otherwise. See McQuiggin v.
Perkins, 569 U.S. 383, 392 (2013) (“We have not
resolved whether a prisoner may be entitled to habeas relief
based on a freestanding claim of actual innocence.”);
Herrera v. Collins, 506 U.S. 390, 404-05 (1993)
(“[O]ur habeas jurisprudence makes clear that a claim
of ‘actual innocence' is not itself a
constitutional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.”), cited
in McQuiggin, 569 U.S. at 392. Without authority to
the contrary, the question is not reasonably debatable.
as noted in the court's § 2255 Order, production of
new exculpatory evidence is a prerequisite to applicability
of the actual innocence exception. (See § 2255 Order at
44-45.) Following Bousley v. United States, 523 U.S.
614 (1998), the court wrote that “Petitioners[']
arguments are of ‘legal insufficiency, ' not
‘factual innocence, ' and they do not merit the
actual-innocence exception.” (Id. at 43
(quoting Bousley, 523 U.S. at 623
(“‘[A]ctual innocence' means factual
innocence, not mere legal insufficiency.”)). The