PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

KENNETH HOON, 

No. 14-8027 

(D.C. Nos. 1:14-CV-00023-NDF and 

2:05-CR-00270-WFD-2) 

(D. Wyo.)

 Defendant - Appellant. 

ORDER 

Before KELLY, ANDERSON, and BACHARACH, Circuit Judges. 

 Mr. Kenneth Hoon was convicted in federal court on drug charges and 

sentenced to 151 months’ imprisonment. After unsuccessfully appealing, Mr. 

Hoon filed a motion to vacate the sentence under 28 U.S.C. § 2255, and the 

district court denied his motion as untimely. Mr. Hoon seeks a certificate of 

appealability to appeal the district court’s order, alleging reliance on Alleyne v. 

United States, __ U.S. __, 133 S. Ct. 2151 (2013). According to Mr. Hoon, 

Alleyne involved a new rule of constitutional law, creating an exception to the 

limitations period. Mr. Hoon’s argument would be rejected by any reasonable 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 12, 2014

Elisabeth A. Shumaker 

Clerk of Court
2 

jurist because it is grounded on a misconception of § 2255. Thus, we decline to 

issue a certificate of appealability and dismiss the appeal. 

Standard for a Certificate of Appealability 

 To appeal, Mr. Hoon needs a certificate of appealability. 28 U.S.C. 

§ 2253(c)(1)(B) (2012). To obtain the certificate, Mr. Hoon must show that 

reasonable jurists could find the district court’s decision on timeliness debatable 

or wrong. See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). 

Timeliness and 28 U.S.C. § 2255(f)(3)

A one-year period of limitations exists. 28 U.S.C. § 2255(f) (2012). This 

period ordinarily starts when the conviction became final. Id. § 2255(f)(1). Mr. 

Hoon’s conviction became final 90 days after the termination of his appeal. See 

United States v. Burch, 202 F.3d 1274, 1279 (10th Cir. 2000). Therefore, the 

limitations period would ordinarily have started in March 2008 and ended in 

March 2009. But the § 2255 motion was not filed until 2014. 

Mr. Hoon seeks to avoid the limitations bar by invoking 28 U.S.C. 

§ 2255(f)(3) (2012). This provision applies when the movant relies on a 

constitutional rule newly recognized by the Supreme Court and made 

retroactively applicable to cases on collateral review. 28 U.S.C. § 2255(f)(3) 

(2012). 
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The Alleyne Decision

 In Alleyne v. United States, the Supreme Court held that any fact that 

increases a mandatory minimum is an element that must be decided by the jury. 

Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151, 2155, 2163-64 (2013). By 

newly recognizing this constitutional right, the Supreme Court’s decision satisfies 

part of § 2255(f)(3). See In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013).1

 

But Mr. Hoon must also satisfy the remaining requirement in § 2255(f)(3): the 

existence of a past holding that the newly recognized constitutional right is 

retroactively applicable to cases on collateral review. 

 No court has treated Alleyne as retroactive to cases on collateral review. 

See United States v. Reyes, __ F.3d __, 2014 WL 2747216 (3d Cir. June 18, 2014) 

(to be published) (holding that Alleyne does not apply to cases on collateral 

review); In re Mazzio, __ F.3d __, 2014 WL 2853722, at *2-3 (6th Cir. June 24, 

2014) (to be published) (same holding); Susinka v. United States, __ F. Supp. 2d 

__, 2014 WL 1998242, at *8 (N.D. Ill. May 14, 2014) (to be published) (same 

holding); Barrow v. United States, __ F. Supp. 2d __, 2013 WL 6869654, at *1, 5 

1 In Payne, we addressed a statutory restriction on second or successive motions 

under § 2255. In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013). This restriction also 

involves reliance on a new constitutional rule made retroactive to cases on collateral 

review. 28 U.S.C. § 2255(h)(2) (2012). But the statutory restriction in Payne requires 

acknowledgment of retroactivity in a Supreme Court decision. Id. Unlike that 

restriction, § 2255(f)(3) does not expressly require a Supreme Court holding on 

retroactivity. See United States v. Sanders, 247 F.3d 139, 146 n.4 (4th Cir. 2001). We 

need not decide whether § 2255(f)(3) requires a Supreme Court determination on 

retroactivity.
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(D. P.R. Nov. 21, 2013) (to be published) (same holding). As a result, the district 

court held that § 2255(f)(3) does not apply. 

 This holding could not be questioned by any reasonable jurist. Section 

2255(f)(3) applies only if a new constitutional rule has been held applicable to 

cases on collateral review, and no court has treated Alleyne as retroactively 

applicable on collateral review. Thus, § 2255(f)(3) does not apply and all 

reasonable jurists would conclude that the § 2255 motion was untimely. In these 

circumstances, we decline to issue a certificate of appealability and dismiss the 

appeal. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge