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Rith v. United States

United States District Court, D. Utah, Central Division

July 3, 2018

MESA RITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MEMORANDUM DECISION DENYING MOTION FOR CERTIFICATE OF APPEAL

          TENA CAMPBELL U.S. DISTRICT COURT JUDGE.

         In August 2017, the court dismissed Petitioner Mesa Rith's § 2255 Motion as untimely. (Aug. 29, 2017 Order & Mem. Decision, ECF No. 24 (§ 2255 Order).) Mr. Rith appealed the court's decision to the Tenth Circuit Court of Appeals on September 21, 2017. Before the appellate court can consider the appeal, it requires a Certificate of Appealability (COA) of the court's Order. The Tenth Circuit abated Mr. Rith's appeal and directed him to obtain “a decision by the district court on whether a COA should issue.” United States v. Rith, No. 17-4149, May 21, 2018 Order (10th Cir.) (filed in this case as ECF No. 34). Following the appellate court's direction, Mr. Rith filed a Motion for COA (ECF No. 35) with this court. Because Mr. Rith has not satisfied the standard necessary to obtain a COA, his motion is denied.

         I. LEGAL STANDARD

         When a 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. § 2253(c)(1)(B).

         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. Cockxrell, 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 327)).

         The 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. 2015).

         When the court denies a § 2255 petition on procedural grounds (as occurred here), 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.

         For the reasons set forth below, the court finds that Mr. Rith has not shown that reasonable jurists could debate the time-bar issue.

         II. ANALYSIS

         Mr. Rith was sentenced in 2001 and his judgment of conviction became final in September 2003. Typically, his § 2255 Motion, which was filed on April 29, 2016, would be time-barred under 28 U.S.C. § 2255(f)(1), which imposes a one-year period of limitation running from the date the judgment becomes final. But Mr. Rith relies on an alternative method to obtain review: if the United States Supreme Court recognizes a new right and makes that right retroactively applicable to cases on collateral review, a petitioner asserting that right may file a § 2255 petition within one year of the Court's decision. 28 U.S.C. § 2255(f)(3).

         In his § 2255 Motion, Mr. Rith relied on the United States Supreme Court's 2015 decision in Johnson v. United States, 135 S.Ct. 2551 (2015), to obtain review. As this court explained in the § 2255 Order,

[i]n Johnson, the Supreme Court ruled that the residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally vague. 135 S.Ct. at 2563. Mr. Rith asserts that because his sentence was mandatorily enhanced under the residual clause of the [United States Sentencing] Guidelines, and because the language of the residual clause of the ACCA and the Guidelines is identical, Johnson applies in this case.

(§ 2255 Order at 4.)

         The court rejected Mr. Rith's petition as untimely after concluding that Johnson did not recognize the right asserted by Mr. Rith. In the § 2255 Order, the court highlighted language in the Supreme Court's decision in United States v. Beckles, 137 S.Ct. 886 (2017), which addressed the same Guideline language in the non-mandatory Guideline context. Justice Sotomayor, in her concurrence, expressly acknowledged that the court has not yet answered the question of “whether defendants sentenced to terms of imprisonment [under the mandatory Guidelines] . . . may mount vagueness attacks on their sentences.” Id. at 903 n.4 (Sotomayor, J., concurring) (emphasis added). Because Mr. Rith raised that unsettled question in ...


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