Nunez v. United States, No. 18-1803 (2d Cir. 2020)Annotate this Case
The Second Circuit affirmed the district court's denial of petitioner's 28 U.S.C. 2255 motion as untimely. The district court held that petitioner could not show that his motion was timely under section 2255(f)(3) because the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), did not recognize a retroactive right not to be sentenced based upon the residual clause in the Career Offender Guideline of the pre-Booker Sentencing Guidelines.
The court held that Johnson did not itself render the residual clause of the pre-Booker Career Offender Guideline unconstitutionally vague and thus did not recognize the right petitioner asserted. Therefore, the district court properly denied the petition.