FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS July 20, 2017

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 16-4128
v. (D.C. Nos. 2:16-CV-00436-DAK and
2:07-CR-00571-DAK-1)
MALCO KIYABO KUNDO, (D. Utah)

Defendant - Appellant.

ORDER
DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, HOLMES, and MORITZ, Circuit Judges.

Defendant-Appellant Malco Kiyabo Kundo, a federal inmate, seeks a

certificate of appealability (COA) to appeal from the district courts 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. 1951. 2 R. 914; 4 R. 317. On April 8, 2008, he was

sentenced to 147 months imprisonment and 60 months supervised release. 2 R.

5355.

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. Kundos motion

was timely. See Kundo, 2016 WL 3079755, at *2.

The district court then rejected Mr. Kundos 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-

-2-
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 courts 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,

-3-
1189 (10th Cir. 2012). 1

Under 28 U.S.C. 2255(f)(3), Mr. Kundos 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, 52728 (1997)).

The new rule the Supreme Court announced in Johnson was that the

1
The Supreme Court has recognized that a court of appeals can sua sponte
raise the issue of timeliness, even if the government has forfeited (though not
waived) the defense. See Wood v. Milyard, 566 U.S. 463, 473 (2012). Here, the
government did not file a response, either before the district court or before this
court. See 10th Cir. R. 22.1(B). Thus, since the government did not plead
untimeliness as an affirmative defense, it must be clear from the face of the
[motion] itself. Kilgore v. Atty Gen., 519 F.3d 1084, 1089 (10th Cir. 2008).
We think that is the case here. See 1 R. 89 (contending that the motion was
timely because [t]he issue was not ripe for argument until Johnson II was
decided). Moreover, because the timeliness issue was clearly presented to and
ruled on by the district court, and since the statute of limitations question under
2255(f)(3) is so closely intertwined with the underlying merits argument the
district court confronted and which Mr. Kundo presents in his application for a
COA, we think the issue is ripe for our consideration without additional briefing.
Cf. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (holding it was
error for district court to rule sua sponte on procedural defense which had not
been briefed at all without giving defendant an opportunity to respond).

-4-
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. Kundos 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

-5-
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. Kundo relies. We do not think the Supreme Courts decision in

Johnson dictates the answer here.

Indeed, when confronted with the same question on direct appeal, the

majority of our sister circuits have expressly held that 924(c)(3)(B) is not

unconstitutionally vague following Johnson. See Ovalles v. United States,

F.3d , No. 17-10172, 2017 WL 2829371, at *1 (11th Cir. June 30, 2017);

United States v. Prickett, 839 F.3d 697, 699700 (8th Cir. 2016) (per curiam);

United States v. Hill, 832 F.3d 135, 14550 (2d Cir. 2016); United States v.

Taylor, 814 F.3d 340, 37579 (6th Cir. 2016); see also United States v. Davis,

F. Appx , No. 16-10330, 2017 WL 436037, at *2 (5th Cir. Jan. 31, 2017) (per

curiam) (unpublished); United States v. Graham, 824 F.3d 421, 424 n.1 (4th Cir.

2016) (en banc) (rejecting vagueness challenge under plain error review). But see

United States v. Cardena, 842 F.3d 959, 99596 (7th Cir. 2016) (holding

924(c)(3)(B) unconstitutionally vague). They did so because 924(c)(3)(B) is

considerably narrower than the statute invalidated by the Court in Johnson, and

because much of Johnsons analysis does not apply to 924(c)(3)(B). Taylor,

814 F.3d at 37576; see also United States v. Serafin, 562 F.3d 1105, 110809

(10th Cir. 2009) (recognizing that 924(c) is narrower in scope than the ACCAs

residual clause). Moreover, in striking down 16(b) as unconstitutionally vague,

-6-
the Sixth Circuit distinguished 924(c)(3)(B) from the Johnson orbit because,

[a]s the Johnson Court determined, no doubt should be cast upon laws [like

924(c)(3)(B)] that apply a qualitative risk standard to real-world facts or

statutory elements. Shuti v. Lynch, 828 F.3d 440, 449 (6th Cir. 2016)

(emphasis omitted) (quoting Johnson, 135 S. Ct. at 2557).

Whether or not this court ultimately decides to follow the majority of our

sister circuits and directly uphold the constitutionality of 924(c)(3)(B) is a

question we may one day answer on direct appeal. But because it is not apparent

to all reasonable jurists that Johnson requires a contrary result, we decline to

reach that question today. Mr. Kundo relies on a new right the Supreme Court

has not yet recognized, and accordingly the re-starting of the one-year limitation

period provided by 28 U.S.C. 2255(f)(3) does not apply.

We DENY a COA and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr.

-7-