Selso Randy Orona v. United States of America

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SELSO RANDY ORONA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
No. 16-70568
D.C. No.
2:11-cr-00856-SRB
OPINION
Application to File Second or Successive
Motion Under 28 U.S.C. § 2255
Submitted June 14, 2016*
Filed June 22, 2016
Before: Carlos T. Bea, Paul J. Watford,
and Michelle T. Friedland, Circuit Judges.
Per Curiam Opinion
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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ORONA V. UNITED STATES 2
SUMMARY**
28 U.S.C. § 2255
The panel granted federal prisoner Selso Randy Orona’s
application for authorization to file in the district court a
second or successive 28 U.S.C. § 2255 motion raising a claim
for relief predicated on Johnson v. United States, 135 S. Ct.
2551 (2015), which held that the Armed Career Criminal
Act’s residual clause is unconstitutionally vague.
The panel agreed that Orona has made a prima facie
showing that the claim he asserts in his proposed § 2255
motion relies on a “new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” The panel directed
the Clerk to transfer the proposed § 2255 motion to the
district court.
The panel published in order to clarify an issue regarding
the running of the one-year statute of limitations set forth in
28 U.S.C. § 2255(f), which in this case began to run on June
26, 2015, the date the Supreme Court decided Johnson. The
panel held that the filing in this court of Orona’s initial
second or successive application tolled the running of the
one-year statute of limitations, and that the limitations period
remained tolled through this court’s disposition of the
application. The panel noted that a petitioner has no control
over how long it will take the court of appeals to grant the
application, which is a prerequisite to the filing of the § 2255
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ORONA V. UNITED STATES 3
motion in the district court. The panel also noted that
Congress’ directive in 28 U.S.C. § 2244(b)(3)(D) that the
courts of appeals act on second or successive applications
with 30 days is hortatory, not mandatory; and that even if
that time limit were mandatory, absent a rule tolling the
limitations period while the application remained pending, a
petitioner would have only 11 months in which to file a
second or successive § 2255 motion, which cannot be squared
with Congress’ clearly stated intent to impose a uniform one-
year limitations period with respect to all § 2255 motions.
COUNSEL
Jon M. Sands, Federal Public Defender; Keith J. Hilzendeger,
Assistant Federal Public Defender; Office of the Federal
Public Defender, Phoenix, Arizona; for Petitioner.
John S. Leonardo, United States Attorney; Krissa M.
Lanham, Assistant United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Respondent.
OPINION
PER CURIAM:
Selso Randy Orona was convicted by a jury of one count
of being a felon in possession of ammunition, in violation of
18 U.S.C. § 922(g)(1). The district court sentenced Orona
under the Armed Career Criminal Act (“ACCA”), which
mandates a sentence of at least 15 years’ imprisonment for
defendants with three or more prior convictions for a “serious
drug offense” or a “violent felony.” 18 U.S.C. § 924(e). At

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ORONA V. UNITED STATES 4
sentencing, the district court may have relied on the ACCA’s
“residual clause” in determining that one or more of Orona’s
qualifying prior convictions constituted a violent felony. In
Johnson v. United States, 135 S. Ct. 2551 (2015), however,
the Supreme Court subsequently held that the ACCA’s
residual clause is unconstitutionally vague. And in Welch v.
United States, 136 S. Ct. 1257 (2016), the Court held that
Johnson announced a new rule of constitutional law that
applies retroactively to cases on collateral review. Orona
contends that, in light of Johnson, he no longer has three
qualifying prior convictions under the ACCA.
As required under 28 U.S.C. § 2255(h), Orona filed an
application in this court seeking authorization to file a
second or successive § 2255 motion raising a claim for
relief predicated on Johnson. (For ease of reference, we
will refer to applications under § 2255(h) as “second or
successive applications.”) After appointed counsel entered an
appearance for Orona, he filed an amended application that
attached his proposed § 2255 motion. The proposed motion
asserts that Orona’s 15-year mandatory minimum sentence is
unlawful in light of Johnson. The government concedes that
authorization to file a second or successive § 2255 motion is
warranted, but reserves the right to contest the merits of
Orona’s claim that he is entitled to relief under Johnson.
We agree that Orona has made a prima facie showing that
the claim he asserts in his proposed § 2255 motion relies on
“a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255(h)(2); see
28 U.S.C. § 2244(b)(2)(A), (b)(3)(C). We therefore grant his
application for authorization to file a second or successive
§ 2255 motion. We direct the Clerk to transfer Orona’s

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ORONA V. UNITED STATES 5
proposed § 2255 motion to the United States District Court
for the District of Arizona.
We have decided to publish in this case to clarify an issue
regarding the running of the statute of limitations. Section
2255 provides that “[a] 1-year period of limitation shall apply
to a motion under this section.” 28 U.S.C. § 2255(f). That
period begins to run from the latest of four different events;
the one applicable in this case is “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.” 28 U.S.C. § 2255(f)(3). Here, that date is June 26,
2015, the date the Supreme Court decided Johnson.
For purposes of determining whether Orona’s § 2255
motion is timely, we hold that the filing in this court of his
initial second or successive application tolled the running of
the 1-year statute of limitations, and that the limitations
period remained tolled through our court’s disposition of the
application. We reach that conclusion for two reasons.
First, although § 2255 does not, by its terms, address
whether the filing of a second or successive application tolls
the running of the statute of limitations, we think Congress
must have intended that to be the case. Congress established
a uniform 1-year limitations period for all § 2255 motions,
regardless of whether the petitioner is filing his first such
motion or a second or successive motion. A petitioner filing
a first § 2255 motion can file it in the district court without
seeking prior authorization from the court of appeals, so
compliance with the 1-year filing deadline is entirely within
his control. That is not true of petitioners seeking to file
second or successive motions. Those petitioners cannot

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ORONA V. UNITED STATES 6
protect themselves from the running of the limitations period
by filing directly in the district court. The statute requires
them to file an application in the court of appeals first, and by
filing such an application they have done everything within
their control to comply with the statute of limitations. It
would thus be unjust to hold that the limitations period
continues to run while a second or successive application
remains pending in the court of appeals. A petitioner has no
control over how long it will take the court of appeals to grant
the application, which is a prerequisite to the filing of the
§ 2255 motion in the district court.
It is true that Congress has directed courts of appeals to
act on second or successive applications within 30 days.
28 U.S.C. § 2244(b)(3)(D). But even if that time limit were
mandatory, absent a rule tolling the limitations period while
the application remained pending, a petitioner in fact would
have only 11 months in which to file a second or successive
§ 2255 motion. We do not think such a regime can be
squared with Congress’ clearly stated intent to impose a
uniform 1-year limitations period with respect to all § 2255
motions.
Second, there is another, more practical reason why we
think tolling is required for the period during which a second
or successive application remains pending before our court.
Along with most other circuits, we have held that the 30-day
time limit imposed by § 2244(b)(3)(D) is “hortatory, not
mandatory.” Ezell v. United States, 778 F.3d 762, 764–65
(9th Cir. 2015). Given the large volume of second or
successive applications our court must process each month,
it frequently takes us longer—sometimes much longer—than
30 days to rule on such applications. Petitioners seeking
authorization to file second or successive § 2255 motions

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ORONA V. UNITED STATES 7
have no way of predicting just how long it will take our court
to act. So again, absent a rule tolling the period during which
a second or successive application remains pending,
petitioners in our circuit would have considerably less than a
full year in which to file their § 2255 motions. And perhaps
worse, they would have no way of reliably calculating in
advance just how much less than a year they actually had.
For these reasons, we conclude that the filing of a second
or successive application in our court tolls the 1-year statute
of limitations, and that the limitations period remains tolled
until our court rules on the application. See Easterwood v.
Champion, 213 F.3d 1321, 1324 (10th Cir. 2000) (adopting
same rule, albeit without reasoning); cf. Fierro v. Cockrell,
294 F.3d 674, 681 n.12 (5th Cir. 2002) (noting but not
deciding whether filing a second or second application in the
court of appeals “may equitably toll” the running of the
statute of limitations). The one caveat is that, to trigger
tolling, the application must allege the claim or claims for
which authorization to file a second or successive motion is
ultimately granted. Take for example a petitioner who files
an initial second or successive application that asserts entirely
meritless claims, but who later amends the application to
assert additional claims. If authorization to file a second or
successive § 2255 motion is ultimately granted based solely
on the later-added claims, the petitioner is entitled to tolling
only from the date the second or successive application was
amended to add those claims, not from the date the original
application was filed.
That caveat is not implicated in this case. When
construed liberally, as pro se filings must be, Orona’s initial
application adequately alleged a claim predicated on the new
rule established in Johnson. His initial application did not

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ORONA V. UNITED STATES 8
attach his proposed § 2255 motion, as our Circuit Rule 22-
3(a) requires, but that requirement is not mandated by § 2255
itself. Failure to comply with that requirement thus does not
render Orona’s initial application deficient for purposes of
tolling the statute of limitations.
In this case, the running of the statute of limitations is
tolled as of February 22, 2016, the date Orona delivered his
initial second or successive application to prison authorities
for filing in this court. See Fed. R. App. P. 4(c)(1); Houston
v. Lack, 487 U.S. 266, 270 (1988). Because we are
simultaneously granting Orona’s application and transferring
his proposed § 2255 motion to the district court, the statute of
limitations will not begin to run again. Orona’s § 2255
motion shall be deemed filed in the district court as of
February 22, 2016.
GRANTED.

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