UNITED STATES of America, Plaintiff-Appellee, v. Barry Addison GRAY, Defendant-Appellant.
Decided: June 10, 2020
Before: MILLER and HUNSAKER, Circuit Judges, and SCHILTZ,** District Judge.
Adam McMeen Flake, Assistant U.S. Attorney, USLV - Office of the U.S. Attorney, Las Vegas, NV, Elizabeth Olson White, Esquire, Assistant U.S. Attorney, USRE - Office of the US Attorney, Reno, NV, for Plaintiff-Appellee Wendi L. Overmyer, Assistant Federal Public Defender, Federal Public Defender's Office Las Vegas, Las Vegas, NV, for Defendant-Appellant
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 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, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (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).
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