United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION DENYING MOTION FOR
CERTIFICATE OF APPEAL
CAMPBELL U.S. DISTRICT COURT JUDGE.
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.
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.
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)).
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
(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.
reasons set forth below, the court finds that Mr. Rith has
not shown that reasonable jurists could debate the time-bar
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 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
(§ 2255 Order at 4.)
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 ...