Peden v. United States, No. 17-3102 (8th Cir. 2019)

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The Eighth Circuit affirmed the district court's denial of petitioner's motion to correct his sentence under 28 U.S.C. 2255 because it was time-barred. The court held that the motion was untimely because Johnson v. United States, 135 S. Ct. 2551 (2015), did not newly recognize the right petitioner asserted: a right under the Due Process Clause to be sentenced without reference to the residual clause of USSG 4B1.2(a)(2) under the mandatory guidelines.

Court Description: Per Curiam - Before Gruender, Kelly and Grasz, Circuit Judges] Prisoner case - Habeas. Peden's habeas motion was untimely and the district court properly dismissed it based on the statute of limitations. See Russo v. U.S., 902 F.3d 880 (8th Cir. 2018).

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-3102 ___________________________ Russell Peden lllllllllllllllllllllPetitioner - Appellant v. United States of America lllllllllllllllllllllRespondent - Appellee ____________ Appeal from United States District Court for the Western District of Missouri - Springfield ____________ Submitted: November 16, 2018 Filed: January 31, 2019 [Published] ____________ Before GRUENDER, KELLY, and GRASZ, Circuit Judges. ____________ PER CURIAM. In 2002, Russell Peden pleaded guilty to one count of possession with intent to distribute 50 grams or more of cocaine base. At sentencing, the district court classified him as a career offender under United States Sentencing Guidelines § 4B1.1 based in part on a previous conviction for California burglary, which the district court determined qualified as a predicate “crime of violence” under the Guidelines. The district court sentenced Peden to 262 months’ imprisonment. In June 2016, he moved to correct his sentence under 28 U.S.C. § 2255 based on Johnson v. United States, 135 S. Ct. 2551 (2015), but the district court1 denied the motion as untimely. “We review de novo the district court’s decision to dismiss [Peden’s] § 2255 motion[] based on the statute of limitations.” E.J.R.E. v. United States, 453 F.3d 1094, 1097 (8th Cir. 2006). Motions under § 2255 are subject to a one-year limitations period. As relevant here, that period runs from the latest of “the date on which the judgment of conviction becomes final,” or “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(1), (3). Peden argues that his motion is timely under § 2255(f)(3) because he filed it within one year of the Supreme Court’s decision in Johnson, which he claims recognized the right he asserts here. According to Peden, in addition to striking down the residual clause of the Armed Career Criminal Act, Johnson also effectively invalidated the residual clause of the mandatory Guidelines that were in effect at the time of his sentencing. Our recent decision in Russo v. United States, 902 F.3d 880 (8th Cir. 2018), forecloses Peden’s contentions. His instant motion is untimely because, as we explained in Russo, Johnson did not “newly recognize[]” the right Peden asserts—“a right under the Due Process Clause to be sentenced without reference to the residual clause of § 4B1.2(a)(2) under the mandatory guidelines.” 902 F.3d at 882. Accordingly, the judgment of the district court is affirmed. 1 The Honorable Beth Phillips, Chief Judge, United States District Court for the Western District of Missouri. -2- ______________________________ -3-

Primary Holding

Because Johnson v. United States did not newly recognize the right petitioner asserted: a right under the Due Process Clause to be sentenced without reference to the residual clause of USSG 4B1.2(a)(2) under the mandatory guidelines, petitioner's 28 U.S.C. 2255 motion was time-barred.

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