Melvin Hodges, Jr. v. United States

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MELVIN HODGES, Jr., No. 17-35408

Petitioner-Appellant, D.C. No. 2:16-cv-01521-JLR

v. MEMORANDUM* UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Submitted July 26, 2019** Seattle, Washington

Before: BERZON and HURWITZ, Circuit Judges, and DEARIE,*** District Judge.

Melvin Hodges, Jr. appeals a district court order denying a 28 U.S.C. § 2255 motion to vacate his sentence. We have jurisdiction under 28 U.S.C. § 2253 and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Raymond J. Dearie, United States District Judge for the Eastern District of New York, sitting by designation.

affirm.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) generally requires that a § 2255 motion be filed within one year after a conviction becomes final. 28 U.S.C. § 2255(f)(1). Hodges filed his motion more than one year after his conviction became final. He argues that it is nonetheless timely because he was sentenced as a career offender under the residual clause in § 4B1.2(a)(2) of the then-mandatory Sentencing Guidelines, and that the logic of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), makes that provision unconstitutional. See 28 U.S.C. § 2255(f)(3) (providing that if a § 2255 motion is based on a right “newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review,” the limitations period begins to runs on the date that the Court first recognized the right). But the Supreme Court has not applied Johnson to mandatory sentences under the Guidelines. Hodges’ motion is therefore untimely. See United States v. Blackstone, 903 F.3d 1020, 1026–28 (9th Cir. 2018), cert. denied, No. 18-9368, 2019 WL 2211790 (U.S. June 24, 2019).

AFFIRMED.

FILED JUL 26 2019 Hodges v. United States, No. 17-35408 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

BERZON, Circuit Judge, concurring:

I concur in the disposition because this court’s decision in United States v. Blackstone controls. See 903 F.3d 1020, 1026–28 (9th Cir. 2018), cert. denied, No. 18-9368, 2019 WL 2211790 (U.S. June 24, 2019). I write separately to note that in my view, Blackstone was wrongly decided.

There is a circuit split over the applicability of 28 U.S.C. § 2255(f)(3) to section 2255 motions based on Johnson v. United States, 135 S. Ct. 2551 (2015), where the challenged sentence was mandatorily enhanced by a residual clause with language parallel to the clause found unconstitutionally vague in Johnson, but contained in a different statute from the one Johnson considered. The Seventh Circuit, the First Circuit, and district courts have persuasively reached a conclusion contrary to our decision in Blackstone. See Cross v. United States, 892 F.3d 288, 294 (7th Cir. 2018) (section 2255 motion filed within one year of Johnson was timely under 28 U.S.C. § 2255(f)(3), broadly interpreting Johnson to newly recognize “a right not to have his sentence dictated by the unconstitutionally vague language of the mandatory residual clause”); Moore v. United States, 871 F.3d 72, 82–83 (1st Cir. 2017) (employing the same interpretation of Johnson in certifying a successive motion under section 2255, and rejecting the Fourth and Sixth Circuit’s contrary, narrower interpretation of Johnson); United States v. Meadows, No. 04-*2 cr-14-LY, 2019 WL 2995929 (W.D. Tex. July 9, 2019). I believe the Seventh and First Circuits have correctly decided this question. However, because Blackstone controls here, I concur in the judgment.