UNITED STATES v. GIVENS (2020)

Donald Lynn Givens, federal prisoner # 28525-180, appeals the denial of his 28 U.S.C. § 2255 motion as untimely. His § 2255 motion challenged his sentence for bank robbery with the use of a dangerous weapon. We granted a certificate of appealability. Relying on Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 2557, 2563, 192 L.Ed.2d 569 (2015), Givens argues that his Texas burglary convictions did not implicate career-offender classification under U.S.S.G. § 4B1.1 for the purposes of the mandatory Guidelines prior to United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Givens contends that Johnson renders his pre-Booker sentence unconstitutionally vague and that he timely filed his § 2255 motion within one year of Johnson.

Givens, however, has not asserted a right dictated by Johnson and therefore he is not entitled to a new period of limitations under § 2255(f)(3). United States v. London, 937 F.3d 502, 507-09 (5th Cir. 2019). Accordingly, his § 2255 motion was not timely. Id. We AFFIRM the judgment of the district court.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.