United States v. Barry Gray

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-16399

Plaintiff-Appellee, D.C. Nos. 2:16-cv-01476-JAD 2:95-cr-00324-JAD-1 v.

BARRY ADDISON GRAY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Submitted June 8, 2020** San Francisco, California

Before: MILLER and HUNSAKER, Circuit Judges, and SCHILTZ,*** District Judge.

Barry Addison Gray appeals the denial of his 28 U.S.C. § 2255 motion. After conducting a de novo review, we affirm the judgment of the district court, as

* 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 Patrick J. Schiltz, United States District Judge for the District of Minnesota, sitting by designation.

Gray’s motion is clearly untimely under United States v. Blackstone, 903 F.3d 1020, 1026-28 (9th Cir. 2018). See also United States v. Olsen, 704 F.3d 1172, 1178 (9th Cir. 2013) (standard of review); Dunne v. Henman, 875 F.2d 244, 247 (9th Cir. 1989) (“[W]e can affirm on any basis shown by the record.”) (citation omitted). Blackstone binds this panel, as it is not “clearly irreconcilable” with the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). See United States v. Shelby, 939 F.3d 975, 978 (9th Cir. 2019) (“A three-judge panel can only decline to apply prior Circuit precedent ‘clearly irreconcilable’ with a subsequent Supreme Court decision.”) (citation omitted).

AFFIRMED.

Footnotes

[2] 18-16399