Russo v. United States, No. 17-2424 (8th Cir. 2018)Annotate this Case
The Eighth Circuit affirmed the district court's dismissal of petitioner's claim seeking post-conviction relief as untimely. Petitioner asserted that, in light of Johnson v. United States, the district court violated his rights under the Due Process Clause by sentencing him as a career offender based on the residual clause of USSG 4B1.2(a)(2). The court explained that whether Johnson restarted the one-year limitations period turns on whether Johnson "newly recognized" this asserted right. In this case, petitioner's asserted right was not dictated by Johnson. Rather, the better view was that Beckles v. United States, 137 S. Ct. 886 (2017), leaves open the question of whether the mandatory guidelines are susceptible to vagueness challenges. The court held that, because the question remains open, and the answer was reasonably debatable, Johnson did not recognize the right asserted by petitioner. Therefore, petitioner could not benefit from the limitations period in 28 U.S.C. 2255(f)(3), and the district court correctly dismissed his motion as untimely.