UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 18-318 (JDB)
JAMES EDWIN KING,
Defendant.
ORDER
Defendant James Edwin King is currently serving a 132-month sentence of incarceration
arising from a multi-year conspiracy in which King used his position at the Department of Veterans
Affairs to steer veterans to deficient educational institutions in exchange for financial benefits from
the operators of those schools. See Judgment [ECF No. 19] at 1–3; Mem. Op., Feb. 25, 2022 [ECF
No. 60] (“Feb. 25 Mem. Op.”) at 2. On February 18, 2020, King filed a three-sentence-long motion
to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on the ground that he had
received ineffective assistance of counsel. See Mot. to Vacate, Set Aside, & Correct Sentence
Pursuant to 28 U.S.C. § 2255 [ECF No. 29] (“Def.’s Initial Pet.”). In October 2021—twenty
months after filing his initial petition and nineteen months after the expiration of the statutory
limitations period—King filed an amended motion (styled as a supplement) elaborating on his
earlier petition. See generally Suppl. in Supp. of Def.’s Initial Pet. [ECF No. 52] (“Def.’s Suppl.”).
On February 25, 2022, this Court dismissed King’s supplement as untimely and denied his § 2255
petition. Order [ECF No. 59]. The Court held that the supplement did not relate back to the initial
petition under Federal Rule of Civil Procedure 15(c)(1)(B), see Feb. 25 Mem. Op. at 6–12, and the
Court further concluded that equitable tolling of the statute of limitations was not warranted, see
id. at 12–19.
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King appealed the Court’s decision on March 23, 2022. Notice of Appeal [ECF No. 62].
However, “an appeal may not be taken to the court of appeals from . . . the final order in a
proceeding under section 2255” “[u]nless a circuit justice or judge issues a certificate of
appealability.” 28 U.S.C. § 2253(c)(1)(B). The Federal Rules Governing § 2255 Proceedings
(“Habeas Rules”) require that a “district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant,” Habeas Rule 11(a), and the D.C. Circuit has
held that only after the district court has done so may the court of appeals act, see United States v.
Mitchell, 216 F.3d 1126, 1129–30 (D.C. Cir. 2000); see also Habeas Rule 11(a) (“If the court
denies a certificate, a party may not appeal the denial but may seek a certificate from the court of
appeals under Federal Rule of Appellate Procedure 22.”); Fed. R. App. P. 22(b)(1) (“If the district
judge has denied the certificate [of appealability], the applicant may request a circuit judge to issue
it.”). Accordingly, the Court of Appeals ordered King’s appeal to be held in abeyance pending a
decision from this Court regarding a certificate of appealability. See Order of USCA, Apr. 1, 2022
[ECF No. 64]. For the reasons set forth below, the Court will not issue a certificate of appealability
in this case.
By statute, “[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). And when a
district court denies a defendant’s petition on procedural grounds, as here, the Supreme Court has
held that a certificate of appealability “should issue when the prisoner shows, at least, 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). Thus, the inquiry
is two-fold: the petitioner must show the debatability of both the merits of his constitutional claim
and the correctness of the district court’s procedural ruling. Id.; accord, e.g., United States v.
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Arrington, 763 F.3d 17, 23 (D.C. Cir. 2014). King is unable to meet this bar: although neither his
timeliness arguments nor his claim of ineffective assistance were frivolous, the Court remains
convinced beyond the point of “debatability” that his supplement was untimely and thus that his
motion was properly denied.
First, the Court does not believe that “jurists of reason would find it debatable” whether
King’s supplement was timely, either by operation of relation back or equitable tolling. As the
Court explained in its prior Memorandum Opinion, King’s argument for relation back “relie[d] on
an impermissibly broad understanding of the relevant ‘conduct, transaction, or occurrence.’” Feb.
25 Mem. Op. at 9. King’s initial motion alleged that his “counsel was ineffective in failing to
investigate the facts of the case,” id. at 7 (quoting Def.’s Initial Pet.), which King himself construed
as potentially encompassing failures to investigate at any time during the proceeding, see Pet’r’s
Reply to Gov’t’s Opp’n to Def.’s Initial Pet. & Suppl. [ECF No. 58] (“Def.’s Reply”) at 2. King’s
supplement, on the other hand, relied on counsel’s “fail[ure] to investigate King’s ‘history and
characteristics’ and subsequently present such information to the Court in order to mitigate King’s
sentence.” Def.’s Suppl. at 11. In order for these two claims to “ar[i]se out of” the same “conduct,
transaction, or occurrence” as required by Federal Rule of Civil Procedure 15(c)(1)(B), then, the
relevant “occurrence” must be King’s entire prosecution. And the Supreme Court has explicitly
rejected that exact proposition. See Mayle v. Felix, 545 U.S. 644, 664 (2005) (noting the Court’s
“rejection of [the petitioner’s] translation of same ‘conduct, transaction, or occurrence’ to mean
same ‘trial, conviction, or sentence”); accord id. at 656–57; United States v. Hicks, 283 F.3d 380,
388 (D.C. Cir. 2002) (rejecting position that “the relevant ‘occurrence’ is the claimant’s trial and
sentencing”). Thus, the Court remains convinced that it was “obligated by binding precedent to
reject” King’s relation back argument. Feb. 25 Mem. Op. at 9. This conclusion, in the Court’s
view, is not susceptible to debate by jurists of reason.
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The same is true with respect to the appropriateness of equitable tolling in this case. As
the Court previously explained, King failed to satisfy either of the two requirements for equitable
tolling: diligence and extraordinary circumstances. See, e.g., Young v. SEC, 956 F.3d 650, 655
(D.C. Cir. 2020). Rather than diligently pursuing § 2255 relief during the twenty months between
his initial petition and supplement, King instead filed two motions seeking compassionate release
under 18 U.S.C. § 3582(c)(1)(A). See Feb. 25 Mem. Op. at 13–14. Even more tellingly, King
specifically directed his then-attorney not to file a § 2255 supplement by the Court’s first deadline.
Id. at 13 (citing Resp. to Ct. Order, Oct. 19, 2020 [ECF No. 39]). And as for King’s argument that
“any delays in filings should be excused by the rare and exceptional circumstances created by the
COVID-19 pandemic,” Def.’s Reply at 3 (internal quotation marks omitted), the Court concluded
that, although the pandemic had undoubtedly complicated the preparation of his supplement, it
could not explain the extent of the delay. Feb. 25 Mem. Op. at 14–17. Instead, the supplement’s
extreme untimeliness was more attributable to King’s decision to focus on compassionate release
and to counsel’s decision to await an expert evaluation (which he did not request until March
2021). Id. at 15–17. The Court stands by these conclusions, and, especially in light of the caselaw
analyzed in the Court’s opinion, see id. at 17–18, it does not believe King’s entitlement to equitable
tolling in this case is “debatable.”
Finally, even if the Court’s timeliness rulings were debatable, the Court would still deny a
certificate of appealability on the ground that King has not shown that reasonable judges “would
find it debatable whether the petition states a valid claim of the denial of a constitutional right.”
Slack, 529 U.S. at 484. The Court has already noted its “grave doubts about [King’s] likelihood
of success” on his ineffective assistance claim, Feb. 25 Mem. Op. at 19 n.19, and those doubts
persist. To prevail, King would need to show that there is “a substantial, not just conceivable,
likelihood,” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (internal quotation marks and citation
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omitted), that this Court would have imposed a lighter sentence had sentencing counsel conducted
a more thorough investigation and presented reasons for leniency in addition to those he did raise
at sentencing and in his sentencing memorandum, see, e.g., Sent. Tr. [ECF No. 31] at 48:16–49:8;
Def.’s Sent. Mem. [ECF No. 11] at 5–8. This is a tenuous chain of inferences in even the best of
cases, and given that the Court varied downward by a full three years in sentencing Mr. King in
the first place, see, e.g., Statement of Reasons [ECF No. 20] at 2–3; Sent. Tr. at 59:8–60:25, the
Court is highly skeptical that the additional arguments identified in the supplement—context
regarding King’s dishonorable discharge from the Army, information regarding his son’s struggles
with mental health, and evidence of King’s financial stressors, see Def.’s Suppl. at 15—would
have led the Court to vary downward even further. The Court concludes, therefore, that neither
the merits of King’s constitutional claim nor the Court’s procedural decision are so debatable as
to warrant the issuance of a certificate of appealability in this case.
Accordingly, upon consideration of the entire record herein, and for the reasons set forth
above, it is hereby
ORDERED that a certificate of appealability with respect to [59] this Court’s Order
dismissing defendant’s supplement as untimely and denying his § 2255 motion is DENIED.
SO ORDERED.
/s/
JOHN D. BATES
United States District Judge
Dated: April 20, 2022
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United States v. King
Combined Opinion