United States v. James Colasanti ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-35779
Plaintiff-Appellee, D.C. Nos. 6:16-cv-01235-MC
6:96-cr-60132-MC-1
v.
JAMES CHRIS COLASANTI, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
Federal prisoner James Chris Colasanti 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. Reviewing de novo, see United States v.
Reves, 774 F.3d 562, 564 (9th Cir. 2014), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Colasanti contends that the district court abused its discretion by considering
the timeliness of his section 2255 motion. We conclude that the government did
not deliberately waive a statute of limitations defense and the district court did not
abuse its discretion by considering the timeliness of the motion. See Day v.
McDonough, 547 U.S. 198, 202, 207-10 (2006) (district court may consider the
timeliness of a habeas petition sua sponte if parties are given fair notice and an
opportunity to present their positions).
Colasanti next asserts that his section 2255 motion is timely because he filed
it within one year of the Supreme Court’s decision in Johnson v. United States, 135
S. Ct. 2551 (2015), and the right recognized in Johnson applies to the mandatory
career offender guideline under which he was sentenced. Colasanti’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, 139 S. Ct. 2762
(2019). Contrary to Colasanti’s argument, our decision in Blackstone is not
“clearly irreconcilable” with United States v. Davis, 139 S. Ct. 2319 (2019). See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Accordingly, the
district court properly concluded that section 2255(f)(3) does not apply and
Colasanti’s motion is untimely. See 28 U.S.C. § 2255(f)(1).
In light of this disposition, we do not reach the parties’ remaining
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arguments.
The government’s motion for summary affirmance is denied as moot.
AFFIRMED.
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