UNITED STATES v. JAMISON (2019)

MEMORANDUM **

Federal prisoner Stanley Edward Jamison, Jr., 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. We review de novo, see United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014), and we affirm.

Jamison contends that the district court abused its discretion by considering sua sponte the timeliness of his section 2255 motion. He also argues that the motion was timely filed 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), because he was sentenced as a career offender according to a provision of the mandatory Guidelines that must be void for vagueness under the logic of Johnson. See 28 U.S.C. § 2255(f)(3); U.S.S.G. §§ 4B1.1, 4B1.2. We first conclude that the government did not deliberately waive a statute of limitations defense and that the district court did not abuse its discretion by sua sponte considering the timeliness of the motion. See Day v. McDonough, 547 U.S. 198, 202, 207-11, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (district court is permitted to consider the timeliness of a habeas motion sua sponte if it accords the parties fair notice and an opportunity to present their positions). Further, Jamison'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). Accordingly, the district court properly concluded that section 2255(f)(3) does not apply and that Jamison's motion is untimely. See 28 U.S.C. § 2255(f)(1).

AFFIRMED.