Selso Orona v. United States
826 F.3d 1196
9th Cir.2016Background
- Selso Randy Orona was convicted of being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1) and sentenced under the ACCA to a 15-year mandatory minimum based on prior convictions treated as violent felonies.
- The district court’s ACCA determination may have relied on the statute’s residual clause, later held void for vagueness in Johnson v. United States (2015).
- Orona filed a second-or-successive application in the Ninth Circuit under 28 U.S.C. § 2255(h)(2) seeking authorization to file a § 2255 motion based on Johnson; the government conceded authorization was appropriate but reserved the right to contest the merits in district court.
- The Ninth Circuit panel granted authorization and directed transfer of Orona’s proposed § 2255 motion to the District of Arizona.
- The court addressed whether the filing of a second-or-successive application in the court of appeals tolls the 1-year statute of limitations under 28 U.S.C. § 2255(f)(3) (the period begins from the date the Supreme Court initially recognized the new right — here, June 26, 2015).
- The panel concluded that filing the application in the court of appeals tolled the limitations period from the date of filing (here, February 22, 2016) until the court disposed of the application; the § 2255 motion is deemed filed in district court as of that date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Orona made a prima facie showing under § 2255(h)(2) that Johnson announced a new, retroactive rule warranting authorization to file a second-or-successive § 2255 motion | Orona argued Johnson voids the ACCA residual clause and thus his sentence is no longer supported by three qualifying predicates | Government conceded authorization was warranted but reserved right to contest merits in district court | Court held Orona made the required prima facie showing and granted authorization to file the § 2255 motion |
| Whether filing a second-or-successive application in the court of appeals tolls the 1-year limitations period in § 2255(f) | Orona argued his filing in the Ninth Circuit should toll the limitations period while the application is pending, so his § 2255 motion is timely | Implicitly, no meaningful opposition to tolling; government did not contest tolling in this panel decision | Court held filing the application in the court of appeals tolls the § 2255 one-year limitations period, which remains tolled until the court rules on the application |
| Scope/timing of tolling when application is amended | Orona relied on initial filing date (Feb 22, 2016) as tolling start; his initial filing sufficiently alleged the Johnson claim | Government reserved merits but did not dispute tolling start here | Court held tolling begins when the application (as originally filed or as amended) alleges the claim that ultimately justifies authorization; here tolling began Feb 22, 2016 and the § 2255 motion is deemed filed on that date |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause held unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson rule applies retroactively on collateral review)
- Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2000) (adopted tolling rule for petition filed in court of appeals)
- Ezell v. United States, 778 F.3d 762 (9th Cir. 2015) (noting § 2244(b)(3)(D)’s 30‑day directive is hortatory)
- Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002) (noting possible equitable tolling for second-or-successive filings)
- Houston v. Lack, 487 U.S. 266 (1988) (prisoner mailbox rule for filing dates)