DISCLAIMER: The following unofficial case summaries are prepared by the clerk's office
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172424P.pdf 09/06/2018 Jeffrey Russo v. United States
U.S. Court of Appeals Case No: 17-2424
U.S. District Court for the District of Nebraska - Omaha
[PUBLISHED] [Colloton, Author, with Smith, Chief Judge, and Beam, Circuit
Judge]
Prisoner case - Habeas. Russo asserts a right under the Due Process Clause
to be sentenced without reference to the residual clause of Guidelines
Sec. 4B1.2(a)(2) under the mandatory guidelines; whether Johnson restarted
the one-year habeas limitations period turns on whether Johnson "newly
recognized" this asserted right; however, Russo's asserted right is not
dictated by Johnson, and the better view is that Beckles leaves open the
question whether the mandatory guidelines are susceptible to vagueness
challenges; because the matter is still an open question and the answer is
reasonably debatable, Johnson did not recognize the right Russo seeks to
assert, and he cannot benefit from the limitations period in Section
2255(f)(3); the district court properly dismissed the motion as untimely.