United States of America v. Willie Scuderi

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE SCUDERI,
Defendant - Appellant.
No. 20-3241
(D.C. Nos. 6:20-CV-01233-EFM &
6:12-CR-10059-EFM-1)
(D. Kan.)
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before McHUGH, KELLY, and BRISCOE, Circuit Judges.
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Petitioner-Appellant Willie Scuderi, a federal inmate appearing pro se, seeks a
certificate of appealability (COA) to appeal the dismissal of his 28 U.S.C. § 2255 motion
as untimely. United States v. Scuderi, No. 12-10059-EFM, 2020 WL 6939796 (D. Kan.
Nov. 25, 2020). In 2012, Mr. Scuderi pled guilty to possessing a firearm as a felon in
violation of 18 U.S.C. § 922(g)(1) and was sentenced to 120 months’ imprisonment. He
did not appeal his conviction or sentence and did not file any motions in this case until
February 2020.
* This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 1, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-3241 Document: 010110502068 Date Filed: 04/01/2021 Page: 1

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As relevant here, a § 2255 motion must be brought within one year from either the
date the conviction became final or the date on which the right asserted was first
recognized by the Supreme Court and made retroactively applicable to cases on collateral
review, whichever is later. 28 U.S.C. § 2255(f)(1), (3). Mr. Scuderi filed the instant
motion in 2020, eight years after his conviction became final. He contended in the
district court that the motion was timely because it was brought within a year after the
Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019).1 The district
court denied the motion as untimely, concluding that Rehaif is not retroactively
applicable to cases on collateral review. Scuderi, 2020 WL 6939796, at *2–3.
To obtain a COA, Mr. Scuderi must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court dismissed Mr.
Scuderi’s § 2255 motion on procedural grounds, he must show “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, Mr. Scuderi filed his motion eight years after his conviction became final and
Rehaif has not been made retroactive by the Supreme Court or any Court of Appeals.
See Mata v. United States, 969 F.3d 91, 94 (2d Cir. 2020). Accordingly, no reasonable
jurist would debate the district court’s procedural ruling that the motion was untimely,
1 Mr. Scuderi filed three § 2255 motions in this case, in February, July, and
August 2020, respectively. The Supreme Court decided Rehaif on June 21, 2019.
Therefore, only Mr. Scuderi’s February 2020 motion could even arguably be timely
under 28 U.S.C. § 2255(f)(3).
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and we therefore need not consider whether Mr. Scuderi made a substantial showing of
the denial of a constitutional right.
We DENY a COA, GRANT IFP, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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