Russell Peden v. United States , 914 F.3d 1151 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3102
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Russell Peden
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: November 16, 2018
Filed: January 31, 2019
[Published]
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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
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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.
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