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

(b), and one count of

Distribution of Child Pornography, in violation of

(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

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

(b), and one count of

Distribution of Child Pornography, in violation of

(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.”

. 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.”

If Mr. Koontz were to bring such

claims under the exceptions, he would not be allowed “to raise

on appeal other issues regarding sentencing.”

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

.”

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.”

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,

; and

was ordered to pay $21,000 in restitution and a $200 special

assessment,

. He was also ordered to comply with the Sex

Offender Registration requirements and participate in a program

for sex offender assessment and treatment.

. 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,

, 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.”

(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.”

(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,

(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,

(2000); see also

(“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

, 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

(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.”

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

(h).

A. Waiver

(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,

(2003). And the onus is on the

petitioner to establish his claims for relief. See

(“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,

(“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.,

(11th Cir. 2010) (citing cases from the Second,

Fifth, and Tenth Circuits). In Jones v. Secretary, Department of

Corrections,

(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.”

. 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,”

.

Similarly, in Beatty v. United States,

(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.”

at 632 (citing Hughes v. Johnson,

(5th Cir. 1999)). It reasoned that since

(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.”

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,

, 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,

, 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,

(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,

, 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,

(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,

, 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.

Koontz’s waiver of his collateral attack rights was not

“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,

, 364 (2017) (quoting Hill v. Lockhart,

(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,

, 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,

(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,

, at *2 (D.D.C. May 7, 2014); see also Miles v. Paul,

No. 18-5224,

, 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,

, 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,

, 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,

, 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.”

(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,

, 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,

, 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

22