UNITED STATES v. COLASANTI (2019)

MEMORANDUM **

Federal prisoner James Chris Colasanti appeals from the district court's order denying his 28 U.S.C. § 2255 motion to vacate his sentence. We have jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014), we affirm.

Colasanti contends that the district court abused its discretion by considering the timeliness of his section 2255 motion. We conclude that the government did not deliberately waive a statute of limitations defense and the district court did not abuse its discretion by considering the timeliness of the motion. See Day v. McDonough, 547 U.S. 198, 202, 207-10, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (district court may consider the timeliness of a habeas petition sua sponte if parties are given fair notice and an opportunity to present their positions).

Colasanti next asserts that his section 2255 motion is timely because he filed it within one year of the Supreme Court's decision in Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), and the right recognized in Johnson applies to the mandatory career offender guideline under which he was sentenced. Colasanti's reliance on Johnson is foreclosed because “Johnson did not recognize a new right applicable to the mandatory Sentencing Guidelines on collateral review.” United States v. Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 2762, 204 L.Ed.2d 1146 (2019). Contrary to Colasanti's argument, our decision in Blackstone is not “clearly irreconcilable” with United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Accordingly, the district court properly concluded that section 2255(f)(3) does not apply and Colasanti's motion is untimely. See 28 U.S.C. § 2255(f)(1).

In light of this disposition, we do not reach the parties’ remaining arguments.

The government's motion for summary affirmance is denied as moot.

AFFIRMED.