Filed: Feb. 08, 2019
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 17-3609 _ Kirk Lurton Grummitt lllllllllllllllllllllPetitioner - Appellant v. United States of America lllllllllllllllllllllRespondent - Appellee _ No. 17-3622 _ Jeremy Phelps lllllllllllllllllllllPetitioner - Appellant v. United States of America lllllllllllllllllllllRespondent - Appellee _ No. 17-3625 _ Kurt Alan Campbell lllllllllllllllllllllPetitioner - Appellant v. United States of America lllllllllllllllllllllRespondent - Appell
Summary: United States Court of Appeals For the Eighth Circuit _ No. 17-3609 _ Kirk Lurton Grummitt lllllllllllllllllllllPetitioner - Appellant v. United States of America lllllllllllllllllllllRespondent - Appellee _ No. 17-3622 _ Jeremy Phelps lllllllllllllllllllllPetitioner - Appellant v. United States of America lllllllllllllllllllllRespondent - Appellee _ No. 17-3625 _ Kurt Alan Campbell lllllllllllllllllllllPetitioner - Appellant v. United States of America lllllllllllllllllllllRespondent - Appelle..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3609
___________________________
Kirk Lurton Grummitt
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
___________________________
No. 17-3622
___________________________
Jeremy Phelps
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
___________________________
No. 17-3625
___________________________
Kurt Alan Campbell
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
___________________________
No. 17-3628
___________________________
Edward Lee Williams
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
____________
Appeals from United States District Court
for the Northern District of Iowa - Cedar Rapids
____________
Submitted: January 17, 2019
Filed: February 8, 2019
[Unpublished]
____________
Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
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Kirk Lurton Grummitt, Jeremy Phelps, Kurt Alan Campbell, and Edward Lee
Williams (collectively, defendants) argue that they were sentenced as career offenders
based on the residual clause of § 4B1.2(a)(2) of the U.S. Sentencing Guidelines
(Guidelines) when the Guidelines were mandatory. In 2015, the Supreme Court
decided Johnson v. United States, 135 S. Ct. 2551 (2015), which established the new
rule that the residual clause of the Armed Career Criminal Act was unconstitutionally
vague. Thereafter, the defendants moved to vacate, set aside, or correct their
sentences under 28 U.S.C. § 2255, each arguing that Johnson applied to the almost-
identical language of § 4B1.2(a)(2). The district court1 concluded that Johnson did
not apply, rendering the motions untimely.
We review de novo the denial of a § 2255 motion as untimely. Russo v. United
States, 902 F.3d 880, 882 (8th Cir. 2018), petition for cert. filed, (U.S. Jan. 17, 2019)
(No. 18-7538). “[T]he timeliness of [a movant’s] claim depends on whether he is
asserting the right initially recognized in Johnson or whether he is asserting a
different right that would require the creation of a second new rule.”
Id. at 883. “[I]f
the result sought is ‘susceptible to debate among reasonable minds,’ then the movant
seeks declaration of a [second] new rule,” and his motion is untimely.
Id. (quoting
Butler v. McKellar,
494 U.S. 407, 415 (1990)).
The defendants’ argument is foreclosed by our decision in Russo, in which the
movant argued that his mandatory sentence based on the residual clause of
§ 4B1.2(a)(2) was unconstitutional in light of Johnson. Id. at 882. In upholding the
dismissal of the § 2255 motion, we explained that the Supreme Court had recently
rejected a vagueness challenge to the advisory Guidelines in Beckles v. United States,
137 S. Ct. 886 (2017), but that “Beckles ‘leaves open the question’ whether the
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, presided over the motions of Grummitt and Phelps. The Honorable
Mark W. Bennett, United States District Judge for the Northern District of Iowa,
presided over the motions of Campbell and Williams.
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mandatory guidelines are susceptible to vagueness challenges” wherein the answer
is reasonably debatable. Russo, 902 F.3d at 883 (quoting
Beckles, 137 S. Ct. at 903
n.4 (Sotomayor, J., concurring in the judgment)). We thus determined that Russo’s
§ 2255 motion was untimely because he was attempting to assert a right not initially
recognized in Johnson.
Id. at 883. For those same reasons, we affirm the district
court’s conclusion that the defendants’ motions were untimely filed. See Mora-
Higuera v. United States, No. 17-3638, slip op. at 3 (8th Cir. 2019) (citing
Russo, 902
F.3d at 882-83).
The judgments are affirmed.
______________________________
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