Rainwater Law Group

Effective Criminal Defense

Orona v. United States, No. 16-70568 [June 14, 2016]

Oronav. United States

Orona filed an application with the 9th Cir. seeking authorization to file a second or successive § 2255 motion raising a claim for relief predicated on Johnson v. United States, 135 S. Ct. 2551 (2015) because the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. The Court further, clarified that the statute began to run from the date the right was made retroactively applicable to cases on collateral review. (Here, the date the Supreme Court decided Johnson, June 26, 2015.) The filing of initial second or successive applications tolled the 1-year statute of limitations because 1) Congress must have intended this to be the case as petitioner has no control over how long it will take to hear the petition and it would be unjust to let the period of limitations run, and; 2) Because the requirement of ruling on the second or successive application within 30 days is “hortatory, not mandatory,” it often takes longer than that time period to have court act, therefore, making it impossible to calculate in advance just how much less than a year they actually had. To trigger tolling, the application must allege the cliam or cliams for which authorization to file a second or successive motion is ultimately granted.

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