United States v. Kundo, 16-4128

Kundo pled guilty in 2008 to armed carjacking (18 U.S.C. § 2119), brandishing a firearm during a crime of violence (18 U.S.C. § 924(c)), and Hobbs Act robbery (18 U.S.C. § 1951); sentenced April 8, 2008 to 147 months.
He did not file a direct appeal; judgment became final April 22, 2008, so the ordinary § 2255 one-year window expired April 22, 2009.
Kundo filed a § 2255 motion on May 23, 2016, invoking § 2255(f)(3) and the Supreme Court’s decision in Johnson (and Welch’s retroactivity) to argue timeliness.
On the merits Kundo argued Johnson’s invalidation of the ACCA residual clause required invalidation of § 924(c)(3)(B)’s risk-of-force clause as applied to his brandishing enhancement for carjacking.
The district court found Johnson/Welch applied to revive timeliness but rejected Kundo’s vagueness argument on the merits; the Tenth Circuit instead denied a COA and dismissed on timeliness grounds, concluding Johnson did not “initially recognize” the right Kundo asserts.

Issue	Plaintiff's Argument (Kundo)	Defendant's Argument (Government)	Held
Whether Kundo’s § 2255 motion is timely under 28 U.S.C. § 2255(f)(3)	Johnson (and Welch’s retroactivity) created a new right that restarted the one-year clock	Johnson did not recognize the specific right Kundo seeks regarding § 924(c)(3)(B)	Motion untimely; § 2255(f)(3) does not apply
Whether Johnson’s invalidation of the ACCA residual clause controls § 924(c)(3)(B)	The ACCA residual clause and § 924(c)(3)(B) are indistinguishable; § 924(c)(3)(B) is unconstitutionally vague	§ 924(c)(3)(B) is materially narrower and tied to real-world conduct, so Johnson does not control	Not decided on merits because timeliness forecloses relief

Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson retroactive on collateral review)
Chaidez v. United States, 568 U.S. 342 (2013) (defining when a rule is "new" for retroactivity purposes)
Teague v. Lane, 489 U.S. 288 (1989) (framework for new rules and retroactivity)
Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016) (applied Johnson to § 16(b))
Taylor v. United States, 814 F.3d 340 (6th Cir. 2016) (concluded § 924(c)(3)(B) is narrower than ACCA residual clause)
Prickett v. United States, 839 F.3d 697 (8th Cir. 2016) (held § 924(c)(3)(B) not unconstitutionally vague post-Johnson)
Cardena v. United States, 842 F.3d 959 (7th Cir. 2016) (concluded § 924(c)(3)(B) is unconstitutionally vague)
Serafin v. United States, 562 F.3d 1105 (10th Cir. 2009) (noting § 924(c) is narrower than ACCA residual clause)
Denny v. United States, 694 F.3d 1185 (10th Cir. 2012) (de novo review of § 2255 timeliness)
Wood v. Milyard, 566 U.S. 463 (2012) (courts may raise timeliness sua sponte in certain circumstances)