UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Crim. Action No. 16-16 (EGS) RANDY KOONTZ, Defendant.
MEMORANDUM OPINION
I. Introduction
Randy Koontz (“Mr. Koontz” or “Defendant”) pled guilty to
one count of Travel with Intent to Engage in Illicit Sexual
Conduct, in violation of 18 U.S.C. § 2423(b), and one count of
Distribution of Child Pornography, in violation of 18 U.S.C.
§ 2252(a)(2). See Plea Agreement, ECF No. 14 at 1. 1 He is
currently serving concurrent sentences of 30 years and 40 years
imprisonment on those counts, respectively. See Minute Entry
(Jan. 12, 2018). In 2020, Mr. Koontz filed a pro se § 2255
motion to vacate his guilty plea. See Mot. Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (“§ 2255 Mot.”), ECF No. 57. This Court denied
the motion, see Mem. Op. (“§ 2255 Op.”), ECF No. 77; and Mr.
1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 1 Koontz now seeks a certificate of appealability, see Application
for Certificate of Appealability (“COA Mot.”), ECF No. 73. 2
Upon consideration of Mr. Koontz’s motion, the response,
the applicable law, and the entire record, the Court DENIES Mr.
Koontz’s motion for a Certificate of Appealability, ECF No. 73.
II. Background 3
A. Factual Background
In March 2015, Mr. Koontz began messaging with an
undercover officer on an internet chat site. See Statement of
Offense, ECF No. 13 at 1-2. The two began communicating via
Skype, where Mr. Koontz sent the officer two video files of
child pornography. Id. at 2. The officer told Mr. Koontz that he
had a five-year-old daughter and Mr. Koontz arranged to meet
them in a hotel room in D.C. so that Mr. Koontz could have sex
with the child. Id. at 3-4.
On April 2, 2015, Mr. Koontz and the officer met at a
coffee shop in D.C. Id. at 5. Mr. Koontz gave the officer a
2 Although Mr. Koontz’s Certificate of Appealability is designated as docket number 73, the actual document can be found in docket number 72 as the document serves as both Mr. Koontz’s application for the certificate and his notice of appeal. To avoid confusion, the Court will reference the motion as docket number 73. 3 The following background provides a brief summary of the
information relevant for resolving Mr. Koontz’s present motion. A more detailed factual and procedural history of this case can be found in the Court’s previous opinion denying Mr. Koontz’s § 2255 motion. See § 2255 Op., ECF No. 77 at 2-12. 2 thumb drive with child pornography and discussed going to a
hotel room to meet the officer’s daughter. Id. The officer gave
Mr. Koontz a hotel room key, but Mr. Koontz handed the key back
to the officer and stated that he “should walk into the room
with the child first.” Id. Mr. Koontz was then arrested. Id.
During his arrest, the officers seized Mr. Koontz’s laptop
and two cell phones. Id. at 6. When they later executed a search
warrant at Mr. Koontz’s residence, they seized other electronic
devices and found that the devices “in total” contained “several
thousand images and videos of child pornography.” Id.
B. Procedural Background
On March 2, 2016, Mr. Koontz waived his right to a jury
trial, see Consent to Proceed Before Magistrate Judge for
Inquiry Pursuant to Federal Rule of Criminal Procedure 11, ECF
No. 10; waived his right to prosecution by indictment, see
Waiver of Indictment, ECF No. 12; and pleaded guilty to one
count of Travel with Intent to Engage in Illicit Sexual Conduct,
in violation of 18 U.S.C. § 2423(b), and one count of
§ 2252(a)(2), see Plea Agreement, ECF No. 14 at 1.
Mr. Koontz’s plea agreement included several waivers.
First, he agreed to “waive the right to appeal the sentence in
this case, including any term of imprisonment, fine, forfeiture,
award of restitution, term of supervised release, authority of
3 the Court to set conditions of release, and the manner in which
the sentence was determined.” Id. at 9. The two exceptions to
this waiver were if: (1) “the Court sentences [Mr. Koontz] above
the statutory maximum or guidelines range determined by the
Court” or (2) Mr. Koontz “claims that [he] received ineffective
assistance of counsel.” Id. If Mr. Koontz were to bring such
claims under the exceptions, he would not be allowed “to raise
on appeal other issues regarding sentencing.” Id.
Second, Mr. Koontz agreed to waive “any right to challenge
the conviction entered or sentence imposed under [the] Agreement
or otherwise attempt to modify or change the sentence or the
manner in which it was determined in any collateral attack,
including, but not limited to, a motion brought under 28 U.S.C.
§ 2255.” Id. The two exceptions to the collateral attack waiver
were if: (1) “such a motion is based on newly discovered
evidence” or (2) the claim was based on “ineffective assistance
of counsel.” Id. Magistrate Judge Harvey specifically reviewed
these waivers in the plea hearing and Mr. Koontz agreed that he
understood the effects of such waivers. See Tr. of Plea Hr’g,
ECF No. 50 at 11-13. This Court accepted Mr. Koontz’s plea on
March 23, 2016. See Minute Order (Mar. 23, 2016).
Mr. Koontz was sentenced to 30 years on the first count and
40 years on the second count with sentences to run concurrently.
See J. in a Criminal Case, ECF No. 47 at 2. He was also
4 sentenced to a life term of supervised release, id. at 3; and
was ordered to pay $21,000 in restitution and a $200 special
assessment, id. at 6. He was also ordered to comply with the Sex
Offender Registration requirements and participate in a program
for sex offender assessment and treatment. Id. at 5. Mr. Koontz
appealed his sentence, and the appeal was dismissed by the Court
of Appeals for the District of Columbia Circuit (“D.C. Circuit”)
because Mr. Koontz “executed a valid waiver of his appellate
rights.” United States v. Koontz, 767 F. App’x 1, 4 (D.C. Cir.
2019).
In June 2020, Mr. Koontz filed a pro se § 2255 motion,
arguing that his guilty plea should be vacated. See § 2255 Mot.,
ECF No. 57. He advanced five arguments: (1) that he received
ineffective assistance of counsel when his attorney failed to
inform him that his guilty plea meant “he would have to also be
guilty of a 109A described offense,” id. at 4; (2) that § 2255
does not provide the Court with subject-matter jurisdiction “to
reverse a conviction, vacate a plea, or other non-sentence
relief,” id. at 5; (3) that “18 U.S.C. § 2423(b)’s requirement
of activity in violation of Chapter 109A” violates his “Fifth
and Sixth Amendment” rights because he was never “formally
charged” with a Chapter 109A crime, id. at 6-7; (4) he received
ineffective assistance of counsel when his attorney advised him
to plead guilty to an information instead of an indictment, when
5 there was not “enough evidence to prove a 109A crime,” id. at 8;
and (5) his due process rights were violated when the “Court
utilized documents not the result of the instant investigation
to enhance [his] sentence,” id. at 9.
This Court denied Mr. Koontz’s § 2255 motion. See § 2255
Op., ECF No. 77 at 36. It determined that Mr. Koontz’s second,
third, and fifth arguments were barred by his plea agreement’s
waiver of his collateral attack rights, see id. at 17; and by
procedural default, see id. at 22. It also determined that Mr.
Koontz’s first and fourth arguments were meritless because he
did not receive ineffective assistance of counsel, failing both
prongs of the Strickland test. Id. at 25-34.
Mr. Koontz timely appealed and filed this instant motion
for a certificate of appealability. See COA Mot., ECF No. 73.
The D.C. Circuit ordered Mr. Koontz’s appeal “held in abeyance”
pending this Court’s resolution of Mr. Koontz’s motion for a
certificate of appealability. Order, ECF No. 75. The Government
submitted its response to Mr. Koontz’s motion in November 2023.
See United States’ Opp’n to Def.’s Mot. for Certificate of
Appealability (“Gov’t Opp’n”), ECF No. 82. Mr. Koontz’s motion
is now ripe and ready for adjudication.
6 III. Legal Standard for Issuance of a Certificate of Appealability
A certificate of appealability must be issued for an
appellate court to hear an appeal from a “final order in a
proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). The
federal district court who rendered the order for which
appellate review is sought must either issue the certificate of
appealability or deny it, in which case a “party may not appeal
the denial but may seek a certificate from the court of appeals
under Federal Rule of Appellate Procedure 22.” Rules Governing
Section 2255 Proceedings for the U.S. Dist. Cts. 11(a); see also
Fed R. App. P. 22(b)(1).
A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make this
showing, the petitioner “need not show that he should prevail on
the merits. . . . Rather, he must demonstrate that the issues
are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to proceed
further.” United States v. Mitchell, 216 F.3d 1126, 1130 (D.C.
Cir. 2000) (internal quotation marks omitted).
When a court denies a § 2255 motion on procedural grounds,
a certificate of appealability may be granted if the petitioner
7 clears the additional hurdle of showing “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, 478
(2000); see also id. at 484-85 (“Determining whether a COA
should issue where the petition was dismissed on procedural
grounds has two components, one directed at the underlying
constitutional claims and one directed at the district court’s
procedural holding. . . . The recognition that the Court will
not pass upon a constitutional question although properly
presented by the record, if there is also present some other
ground upon which the case may be disposed of . . . allows and
encourages the court to first resolve procedural issues.”
(internal quotation marks and citation omitted)).
IV. Analysis
In Mr. Koontz’s pro se § 2255 motion, he raised five
grounds for relief. See § 2255 Op., ECF No. 77 at 15-16.
However, in his present motion for a certificate of
appealability, Mr. Koontz addresses none of those five grounds,
and instead seeks vacatur of his “conviction on grounds of
ineffective assistance of counsel for failing to protect his
mentally incapacitated client.” COA Mot., ECF No. 73 at 5.
Specifically, Mr. Koontz argues that his counsel was ineffective
for “not acknowledging” his “due process rights by making known
to the court the plaintiff[’s] inability to participate in his
8 own defense” due to Mr. Koontz’s “depressive incapacitation,”
which “made him incapable of understanding the consequences of
his actions in his criminal proceedings.” Id. at 4. In support
of his argument, Mr. Koontz states that his PSR and “several
mental evaluations” proved that his mental cognizance was
impaired, and he was experiencing “severe mental depression.”
Id. at 2.
The Government argues that Mr. Koontz’s COA motion is “in
effect, a successive motion under 28 U.S.C. § 2255, even though
it is not labeled as such, as he did not raise these claims in
his underlying § 2255 motion.” Gov’t Opp’n, ECF No. 82 at 5. Its
proposed course of action is to have this Court transfer Mr.
Koontz’s motion to the D.C. Circuit since district courts lack
jurisdiction over successive § 2255 petitions without a court of
appeals order authorizing the district court to consider the
application. See id. at 7 (citing 28 U.S.C. § 2244(b)(3)(A)).
The Government also argues that even “if the Court determines
that it may address defendant’s new claims, the Court should
summarily deny them.” Id.
Upon review of the record and applicable case law, the
Court concludes that Mr. Koontz has waived the five grounds for
§ 2255 relief which he brought in his original petition by not
mentioning them in his present motion for a certificate of
appealability. However, out of an abundance of caution, the
9 Court also determines that even if it were to consider the
grounds, it would deny a certificate of appealability for all
five under the applicable standards. Furthermore, the Court
concludes that based on the argument in Mr. Koontz’s present
motion, the Government is correct that he is effectively
bringing a successive § 2255 motion. However, this Court will
not transfer the motion to the D.C. Circuit because the motion
fails to meet the necessary criteria under 28 U.S.C. § 2255(h).
A. Waiver
28 U.S.C. § 2253(c)(2) states that “[a] certificate of
appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
Accordingly, the Supreme Court has emphasized that the “issuance
of a COA must not be pro forma or a matter of course.” Miller-El
v. Cockrell, 537 U.S. 322, 337 (2003). And the onus is on the
petitioner to establish his claims for relief. See id. at 338
(“A prisoner seeking a COA must prove something more than the
absence of frivolity or the existence of mere good faith on his
or her part.” (internal quotation marks omitted) (emphasis
added)); Slack, 529 U.S. at 484 (“Where a district court has
rejected the constitutional claim on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the district
10 court’s assessment of the constitutional claims debatable or
wrong.” (emphasis added)).
Several circuits have used this requirement to conclude
that when a petitioner fails to support a certain ground for
§ 2255 relief in their COA, the petitioner has “waived” that
ground. See, e.g., Jones v. Sec’y, Dep’t of Corr., 607 F.3d
1346, 1353-54 (11th Cir. 2010) (citing cases from the Second,
Fifth, and Tenth Circuits). In Jones v. Secretary, Department of
Corrections, 607 F.3d 1346 (11th Cir. 2010), the Court of
Appeals for the Eleventh Circuit declined to provide a
certificate of appealability to a petitioner on grounds where he
did “not provide facts, legal arguments, or citations of
authority that explain why he is entitled to a certification on
those . . . grounds.” Id. at 1353. In explaining its reasoning,
the Jones Court stated that generally litigants are “required
. . . to identify errors and provide arguments about their
entitlement to relief,” id.; and “[w]e have not treated
petitioners seeking writs of habeas corpus any differently from
other litigants,” meaning that the general “rule applies with
equal force to petitioners seeking a certificate of
appealability,” id. at 1354.
Similarly, in Beatty v. United States, 293 F.3d 627 (2d
Cir. 2002), the Court of Appeals for the Second Circuit held
that “[i]f [a petitioner] omits claims from his papers in
11 support of a COA, those claims should normally be deemed
abandoned.” Id. at 632 (citing Hughes v. Johnson, 191 F.3d 607,
613 (5th Cir. 1999)). It reasoned that since 28 U.S.C.
§ 2253(c)(3) requires a COA to specify which issues satisfy the
COA standard, a “court, considering whether to issue a COA to
permit appeal from the denial of a collateral attack, is
entitled to limit its consideration to the grounds advanced by
the prisoner in seeking a COA” “[j]ust as a district court
adjudicating a section 2255 motion is entitled to limit its
consideration to the grounds specified by the prisoner.” Id.
Although the Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) has yet to directly rule on the issue,
several judges in this district have denied a certificate of
appealability when a petitioner has failed to develop their
claim on the grounds presented in the § 2255 motion. See, e.g.,
United States v. Young, No. 7-153, 2016 WL 1381763, at * 2
(D.D.C. Apr. 6, 2016) (denying COA where defendant’s papers were
“devoid of any bases or grounds for challenging the Court’s
denial of his § 2255 motion”); United States v. Jones, No. 5-
441, 2011 WL 13301402, at *1 (D.D.C. July 5, 2011) (denying COA
where “[e]ven under a liberal pro se standard,” defendant made
“no attempt to demonstrate that the issues are debatable among
jurists of reason” (internal quotation marks omitted)).
12 Applying the logic from Jones, Beatty, and several courts
in this district to Mr. Koontz’s motion, the Court declines to
issue a certificate of appealability. Mr. Koontz does not
mention—much less advocate for—any of his original five grounds
for § 2255 relief in the present COA motion. Therefore, Mr.
Koontz has failed to “demonstrate that the issues are debatable
among jurists of reason; that a court could resolve the issues
[in a different manner]; or that the questions are adequate to
deserve encouragement to proceed further.” Mitchell, 216 F.3d at
1130 (internal quotation marks omitted).
B. Original Grounds from § 2255 Motion
Although the Court concludes that Mr. Koontz has waived the
five claims for § 2255 relief from his original motion by not
mentioning them in the current COA motion, in an abundance of
caution the Court will briefly examine why it also concludes
that such grounds would not warrant a COA even if they had not
been waived.
1. Procedural Bars: Grounds Two, Three, and Five
This Court previously determined that Grounds Two, Three,
and Five of Mr. Koontz’s claims for § 2255 relief were barred on
procedural grounds. See § 2255 Op., ECF No. 77 at 17-25.
Specifically, this Court held that the claims were barred by:
(1) the waiver of Mr. Koontz’s collateral attack rights from his
plea agreement, see id. at 17-22; and (2) procedural default for
13 failing to raise the claims on direct appeal, see id. at 22-25.
Although the Court stands by its reasoning on both grounds, for
the sake of brevity and because either procedural bar would
prevent Mr. Koontz from obtaining a COA, the Court will only
examine the plea agreement waiver under the COA standard.
To issue a COA for Grounds Two, Three, and Five of Mr.
Koontz’s § 2255 petition, the Court must conclude that “jurists
of reason would find it debatable whether the district court was
correct in its procedural ruling,” Slack, 529 U.S. 484—in this
case, that Mr. Koontz’s plea agreement bars those three grounds.
Mr. Koontz’s plea agreement expressly bars collateral attacks
“including, but not limited to, a motion brought under 28 U.S.C.
§ 2255” with the two exceptions of “a motion . . . based on
newly discovered evidence or on a claim that [Mr. Koontz]
received ineffective assistance of counsel.” Plea Agreement, ECF
No. 14 at 9.
None of the three grounds fall into the two exceptions.
Ground Two involves the Court’s subject matter jurisdiction;
Ground Three involves Mr. Koontz’s Fifth and Sixth Amendment
rights based on being convicted of a Chapter 109A offense; and
Ground Five involves the Court’s reliance on the PSI report to
enhance Mr. Koontz’s sentence. See § 2255 Mot., ECF No. 57 at 5-
9. The D.C. Circuit construes plea agreements applying “contract
principles” and dismisses claims where “the agreement
14 unambiguously covers the accused’s claims.” Khadr v. United
States, 67 F.4th 413, 419 (D.C. Cir. 2023). In this case,
Grounds Two, Three, and Five from Mr. Koontz’s § 2255 motion are
unambiguously covered by the terms of the collateral attack
waiver because the waiver expressly bars all collateral attacks
and none of the three grounds even arguably falls within the two
explicit exceptions.
Furthermore, nothing in the record suggests that Mr.
Koontz’s waiver of his collateral attack rights was not
“knowing, intelligent, [or] voluntary.” United States v.
Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009). The record
establishes that Mr. Koontz signed the written agreement,
affirmed that he read and discussed it with his attorney, and
confirmed under oath to Magistrate Judge Harvey that he
understood and accepted the collateral attack waiver after
Magistrate Judge Harvey specifically explained the meaning of
the waiver. § 2255 Op., ECF No. 77 at 20-21; see also United
States v. Sumner, No. 2-1538, 2005 WL 1216980, at *3 (D.D.C. May
20, 2005) (denying COA on “procedural default” grounds where
“all evidence indicated that Petitioner voluntarily permitted
his prosecution by information, and Petitioner acknowledged both
on the record and with his signature indicating that he was
aware that acceptance of his plea included waiver of his
applicable . . . right[s]”); cf. Koontz, 767 F. App’x at 3-4
15 (concluding that Mr. Koontz “executed a valid waiver of his
appellate rights” because “both the plea agreement and the
magistrate judge marked the precise metes and bounds of Koontz’s
appellate rights” and “Koontz confirmed his understanding by
signing the plea agreement and verbally acknowledging that he
understood the magistrate judge’s recital”).
Therefore, because the collateral attack waiver expressly
covers Grounds Two, Three, and Five of Mr. Koontz’s § 2255
motion and because there is no evidence in the record that Mr.
“knowing, intelligent, [or] voluntary,” reasonable jurists would
not find it debatable that Mr. Koontz’s claims are barred by his
plea agreement.
2. Ineffective Assistance of Counsel: Grounds One and Four
The Court also previously determined that Mr. Koontz’s
ineffective assistance of counsel claims—Grounds One and Four
from his § 2255 motion—failed both prongs of the Strickland
test. See § 2255 Op., ECF No. 77 at 25-34. Although the Court
stands by its reasoning on both grounds, for the sake of brevity
and because failure on either prong would prevent Mr. Koontz
from obtaining a COA, the Court will only examine the prejudice
prong under the COA standard.
16 The Supreme Court has stated that “when a defendant claims
that his counsel’s deficient performance deprived him of a trial
by causing him to accept a plea, the defendant can show
prejudice by demonstrating a ‘reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.’” Lee v. United States, 582
U.S. 357, 364 (2017) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)). In conducting this inquiry, the Supreme Court urged
lower courts to “not upset a plea solely because of post hoc
assertions from a defendant about how he would have pleaded but
for his attorney’s deficiencies,” but instead to “look to
contemporaneous evidence to substantiate a defendant’s expressed
preferences.” Id. at 369.
Mr. Koontz’s two claims of ineffective assistance of
counsel are based on the assertions that his counsel failed to
explain that “to be guilty of [a] § 2423 [crime] he would have
to also be guilty of a 109A described offense” (Ground One),
§ 2255 Mot., ECF No. 57 at 4; and that his counsel advised
pleading guilty to an information “and not indictment to a crime
the Grand Jury could not indict for” (Ground Four), id. at 8. As
this Court described in its opinion denying § 2255 relief, Mr.
Koontz claims that he “would have gone to trial” if he had been
properly advised but offers no contemporaneous evidence to
substantiate his supposed preference. See § 2255 Op., ECF No. 77
17 at 33-34. Mr. Koontz claimed that he “could have defended
against the 109A charge and thereby defended the 2423(b) count”
but also admits that “[c]ounsel never offered any defense
available to a 109A charge,” § 2255 Mot., ECF No. 57 at 4; and
that “[c]ounsel never presented any options of any defense
strategy if he proceeded to trial,” id. at 8. Furthermore, as
described in the § 2255 Opinion, the “overwhelming evidence”
against Mr. Koontz, combined with Magistrate Judge Harvey’s
observation that Mr. Koontz’s actions merited a life sentence,
significantly undercuts his claim that he would have gone to
trial absent his counsel’s purported inadequacies. See § 2255
Op., ECF No. 77 at 33.
Finally, the record reflects that in Mr. Koontz’s plea
colloquy, Magistrate Judge Harvey specifically informed Mr.
Koontz of the Chapter 109A violation, its elements, and the
consequences of pleading guilty to an information instead of an
indictment and confirmed that Mr. Koontz understood these
issues. See Tr. of Plea Hr’g, ECF No. 50 at 8, 20-22, 27. Thus,
Mr. Koontz cannot claim prejudice by his attorney’s purported
failure to inform him on the issues because he was notified
about them during his plea colloquy and given the express
opportunity to decline to plead guilty based on their relevance.
See Sumner, 2005 WL 1216980, at *4 (declining to issue a COA for
ineffective assistance of counsel when “the Court itself had
18 repeatedly advised Petitioner of the very right he alleged his
attorney failed to discuss with him”).
Since Mr. Koontz offered no evidence that he would have
gone to trial absent his counsel’s purported errors and because
the record reflects that the purported errors Mr. Koontz
identified were expressly explained to him by the Court during
his plea hearing, reasonable jurists would not be able to debate
that Mr. Koontz’s claims of ineffective assistance of counsel
had any merit.
C. New Grounds from COA Motion
In his present motion for a COA, Mr. Koontz argues
ineffective assistance of counsel, but on the new ground that
his “depressive incapacitation” made him unable “to participate
in his own defense” and therefore his plea was not knowing and
voluntary. See COA Mot., ECF No. 73 at 4. The D.C. Circuit has
acknowledged that “[t]his Court has a well-established rule
against allowing parties to initiate new [§ 2255] claims on
appeal.” United States v. Naranjo, 254 F.3d 311, 313 (D.C. Cir.
2001). Following this rule, the D.C. Circuit and district courts
in this circuit have concluded that a Petitioner “may not add
new claims for the first time in [a] motion for a certificate of
appealability.” United States v. Locke, No. 9-259, 2014 WL
12724270, at *2 (D.D.C. May 7, 2014); see also Miles v. Paul,
No. 18-5224, 2020 WL 2621219, at *1 (D.C. Cir. May 20, 2020)
19 (“To the extent appellant seeks to assert a new claim of
ineffective assistance of . . . counsel, the court will not
consider—as part of the request for a certificate of
appealability—claims that appellant did not present to the
district court and raises for the first time on appeal.”);
United States v. Hicks, No. 18-3020, 2018 WL 5115517, at *1
(D.C. Cir. Sept. 19, 2018). Thus, the Court may not consider the
merits of Mr. Koontz’s new argument for § 2255 relief because he
did not raise this ground in his original § 2255 motion.
The Court agrees with the government that Mr. Koontz’s
current COA motion is “in effect” a successive motion for § 2255
habeas relief because it seeks vacatur of Mr. Koontz’s plea and
argues for § 2255 relief on a new ground. See Dufur v. U.S.
Parole Comm’n, 34 F.4th 1090, 1096 (D.C. Cir. 2022) (“The
authority to recharacterize a pro se complaint extends to the
longstanding practice of construing as a habeas petition a
motion that a pro se federal prisoner has labeled differently.”
(internal quotation marks omitted)); United States v. Clark, 977
F.3d 1283, 1289 (D.C. Cir. 2020) (“no matter what label a
Petitioner gives to an action, any motion filed in the district
court that imposed the sentence, and [is] substantively within
the scope of § 2255[], is a motion under § 2255” (internal
quotation marks omitted)).
20 The Government suggests that the Court “should transfer”
the COA motion “to the D.C. Circuit so that court may determine
whether to authorize the filing of this successive § 2255
motion.” Gov’t Opp’n, ECF No. 82 at 7. However, section 2255(h)
states that a successive habeas motion may only be certified by
a court of appeals if the motion is based on “(1) newly
discovered evidence that, if proven and viewed in the light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense; or (2) 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).
As the government acknowledges, Mr. Koontz’s motion meets
neither criteria. His claim for ineffective assistance of
counsel because of his “severe mental depression,” is not based
on new evidence. In fact, in his motion, Mr. Koontz states that
the depression was “noted in his PSR,” and he was “proven
impaired by several mental evaluations” but that was “ignored by
his counsel.” COA Mot., ECF No. 73 at 2. Furthermore, Mr. Koontz
does not identify any law in his motion and thus, it cannot be
predicated on any “new rule of constitutional law.” Therefore,
the Court declines to transfer the motion. See United States v.
Naranjo, No. 93-418, 2014 WL 5408414, at *2 (D.D.C. Oct. 24,
21 2014) (declining to “transfer [Petitioner’s] motion to the D.C.
Circuit for authorization to file a successive § 2255 motion”
because Petitioner “fails to meet the standards for
certification”); United States v. Bufford, No. 14-169, 2019 WL
7758881, at *1 (D.D.C. May 28, 2019) (dismissing successive
petition “without prejudice to refile in the D.C. Circuit” but
noting that “chances appear slim” such a certification would be
granted because Petitioner “had not made either showing” that
his motion would meet § 2255(h) standards).
V. Conclusion
For the foregoing reasons, Mr. Koontz’s motion for a
certificate of appealability, ECF No. 73, is DENIED. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge June 28, 2024