Submitted October 19, 2015.
Appeal from United States District Court for the District of Minnesota - Minneapolis.
William Joseph Headbird, Petitioner - Appellant, Pro se, Butner, NC.
For William Joseph Headbird, Petitioner - Appellant: Katherine M. Menendez, Assistant Federal Public Defender, Robert H. Meyers, FEDERAL PUBLIC DEFENDER'S OFFICE, Minneapolis, MN.
For United States of America, Respondent - Appellee: Lisa D. Kirkpatrick, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Saint Paul, MN; Clifford Ben Wardlaw, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN.
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
In 2005, a jury convicted William Joseph Headbird of one count of possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court applied the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), and sentenced Headbird to 327 months in prison. This court affirmed the judgment on direct review. United States v. Headbird, 461 F.3d 1074 (8th Cir. 2006). In June 2014, Headbird moved to vacate his sentence in light of the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). The district court concluded that Descamps did not create a newly recognized right that applies retroactively to cases on collateral review and denied Headbird's motion as untimely under 28 U.S.C. § 2255(f). Headbird appeals, and we affirm.
Headbird was convicted in 2005 on one count of possessing a firearm as a previously convicted felon. The district court found that Headbird had sustained seven prior " violent felony" convictions for purposes of 18 U.S.C. § 924(e): theft of a motor vehicle, motor vehicle use without consent, attempted escape from custody, escape from custody, felony attempted escape, and two convictions for second-degree assault. Accordingly, the court determined that Headbird was subject to a mandatory minimum sentence of fifteen years, and a maximum of life imprisonment, under § 924(e)(1). After calculating an advisory guideline range of 262 to 327 months' imprisonment, the court sentenced Headbird at the top of the range.
Headbird moved in 2014 to vacate the sentence, arguing that Descamps showed that his three prior escape convictions were not violent felonies. He urged that Descamps established a new substantive rule that applies retroactively to cases on collateral review. Headbird also asserted that his two prior motor vehicle convictions were no longer violent felonies in light of Begay v. United States, 553 U.S. 137, 142-43, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and United States v. Miller, 305 Fed.Appx. 302, 303 (8th Cir. 2008) (per curiam). Headbird thus argued that because he had sustained only two prior convictions for violent felonies, the district court erroneously sentenced him as an armed career criminal, and that the statutory maximum punishment for his offense was 120 months. See 18 U.S.C. § 924(a)(2). Headbird argued that his motion was timely, because it was filed within one year after the Supreme Court in Descamps recognized a new right that has been made retroactively applicable to cases on collateral review. See 28 U.S.C. § 2255(f)(3).
The district court denied the motion, concluding that Descamps did not establish a new rule that applied retroactively. Therefore, the limitations period for filing a § 2255 motion expired one year after the judgment of conviction became final, and the district court dismissed the motion as untimely. See id. § 2255(f)(1). The district court issued a certificate of appealability.
There is a one-year limitations period for a motion to vacate a sentence filed under 28 U.S.C. § 2255. The period typically runs from the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). The limitations period starts later, however, when the movant asserts a right that " has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Id. § 2255(f)(3). In that situation, the one-year limitations ...