United States v. Kirksey Nix, Jr. ( 2019 )

Case: 15-60465 Document: 00514873895 Page: 1 Date Filed: 03/14/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60465 FILED
March 14, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
KIRKSEY MCCORD NIX, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:15-CV-77
Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
Kirksey McCord Nix, Jr., federal prisoner #20921-077, contests the
district court’s dismissal of his 28 U.S.C. § 2255 motion as time-barred. The
district court’s factual findings are reviewed for clear error; its conclusions of
law, de novo. E.g., United States v. Redd, 562 F.3d 309, 311 (5th Cir. 2009).
The denial of § 2255 relief may be affirmed on any basis supported by the
record. Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000).
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 15-60465 Document: 00514873895 Page: 2 Date Filed: 03/14/2019
No. 15-60465
The one-year limitations period applicable to § 2255 motions runs from
the latest of four events including, pertinent here, the date on which the right
asserted by movant was recognized by the Supreme Court, “if that right has
been newly recognized by the . . . Court and made retroactively applicable to
cases on collateral review”. 28 U.S.C. § 2255(f)(3). Nix contends his § 2255
motion was timely filed under § 2255(f)(3) because it relies on a new right
announced in Rosemond v. United States, 572 U.S. 65 (2014).
In United States v. Nix, 694 F. App’x 287, 288 (5th Cir. 2017), our court
found Nix failed to show Rosemond applies retroactively to cases on collateral
review. Also, Rosemond addresses the application of the aiding-and-abetting
statute when the underlying offense includes the requirement that the offense
be committed during, and in relation to, the predicate offense, that is a
combination offense. See United States v. Carbins, 882 F.3d 557, 565 (5th Cir.
2018); United States v. Baker, 912 F.3d 297, 312–15 (5th Cir. 2019). Nix’s
relevant conviction is for conspiracy to violate the murder-for-hire statute, 18
U.S.C. § 1958(a). United States v. Sharpe, 995 F.2d 49, 50 (5th Cir. 1993)
(Sharpe I). Rosemond does not apply to the facts of Nix’s case. See, e.g., Baker,
912 F.3d at 312–315.
AFFIRMED.
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