Russo v. United States, No. 17-2424 (8th Cir. 2018)
Annotate this CaseThe 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.
Court Description: Colloton, Author, with Smith, Chief Judge, and Beam, Circuit Judge] Prisoner case - Habeas. Russo asserts a right under the Due Process Clause to be sentenced without reference to the residual clause of Guidelines Sec. 4B1.2(a)(2) under the mandatory guidelines; whether Johnson restarted the one-year habeas limitations period turns on whether Johnson "newly recognized" this asserted right; however, Russo's asserted right is not dictated by Johnson, and the better view is that Beckles leaves open the question whether the mandatory guidelines are susceptible to vagueness challenges; because the matter is still an open question and the answer is reasonably debatable, Johnson did not recognize the right Russo seeks to assert, and he cannot benefit from the limitations period in Section 2255(f)(3); the district court properly dismissed the motion as untimely.
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