               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 17-1069

                             SAMUEL DIXON,

                      Petitioner, Appellant,

                                    v.

                    UNITED STATES OF AMERICA,

                       Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                                 Before

                      Howard, Chief Judge,
               Selya and Barron, Circuit Judges.


     Judith H. Mizner, Assistant Federal Defender, on brief for
appellant.
     Andrew E. Lelling, United States Attorney, and Randall E.
Kromm, Assistant United States Attorney, on brief for appellee.


                            April 11, 2018
            Per Curiam.    We have said that every time Congress draws

a line, some people are bound to fall on the wrong side of it.

See Sprandel v. Sec'y of HHS, 838 F.2d 23, 27 (1st Cir. 1988) (per

curiam).    If the deadline that Congress has chosen seems harsh

when applied in a given case, such a risk of perceived harshness

"is endemic to lines."      Id.   So it is here:    the petitioner filed

his motion to vacate or correct his sentence one day after the

deadline established by Congress had expired.          Consequently, his

motion was late — and the petitioner has not alleged any facts

that would suggest a justification for excusing the untimely

filing.    Therefore, we summarily affirm the district court's order

of dismissal.

            We start by rehearsing the travel of the case.             In 2013,

petitioner-appellant Samuel Dixon was convicted of being a felon

in   possession   of   a   firearm    and    ammunition,   see    18    U.S.C.

§ 922(g)(1), and was sentenced to a 220-month term of immurement.

He unsuccessfully appealed his conviction to this court and failed

in his effort to obtain review in the Supreme Court.              See United

States v. Dixon, 787 F.3d 55 (1st Cir.), cert. denied, 136 S. Ct.

280 (2015).

            On October 6, 2016 — exactly one year and one day after

the Supreme Court had denied review — the petitioner filed a motion

in the district court under 28 U.S.C. § 2255.                    That motion

challenged his status as a career criminal under the Armed Career


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Criminal Act (ACCA), 18 U.S.C. § 924(e), and sought to vacate or

correct his sentence.         To place his challenge into a workable

perspective, some background is helpful.

          The ACCA imposes higher mandatory minimum sentences on

career   criminals,    that     is,    defendants     with     three   or   more

convictions    for    violent    felonies     or    serious     drug   offenses

(commonly referred to as "predicate offenses").              See id.    When the

petitioner was sentenced in 2013, convictions could qualify as

convictions    for    violent    felonies     (and,    thus,     as    predicate

offenses) under either the "residual" clause or the "force" clause

of the ACCA.    See United States v. Starks, 861 F.3d 306, 314 (1st

Cir. 2017).    The presentence investigation report prepared by the

probation department for the petitioner's sentencing enumerated

predicate offenses which, collectively, qualified the petitioner

as an armed career criminal.           These offenses included a federal

conviction for armed bank robbery, two federal convictions for

unarmed bank robbery, a Massachusetts conviction for larceny, two

Massachusetts convictions for assault and battery with a dangerous

weapon (ABDW), two Massachusetts convictions for unarmed robbery,

and a Massachusetts conviction for possession of a controlled

substance.     Given this litany of offenses, the district court

concluded that the petitioner should be sentenced as an armed




                                      - 3 -
career criminal.1      This determination produced a substantially

longer sentence than otherwise would have been imposed.

          In Johnson I, the Supreme Court held that the force

clause of the ACCA requires violent force capable of causing

physical pain or injury to another person.         See Johnson v. United

States (Johnson I), 559 U.S. 133, 140 (2010).         Five years later,

in Johnson II, the Supreme Court ruled that the residual clause of

the ACCA's definition of violent felony was unconstitutionally

vague. See Johnson v. United States (Johnson II), 135 S. Ct. 2551,

2557 (2015).   This decision opened the door for those individuals

who were sentenced as armed career criminals based on prior

convictions    that   qualified   as   predicate    offenses   under   the

residual clause to challenge their sentences.        See Welch v. United

States, 136 S. Ct. 1257, 1265 (2016).      The petitioner brought just

such a challenge, filing a motion under 28 U.S.C. § 2255 to vacate

or correct his sentence in light of Johnson II.         He alleged that

his prior state convictions for larceny, robbery, and ABDW, as

well as his prior federal convictions, no longer could count as




     1   We do not imply that all of the listed offenses were
predicate offenses. Rather, the sentencing court determined that
at least three of them qualified as predicate offenses.


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predicate   offenses   in   ascertaining   his   armed   career   criminal

status.2

            The government objected to the motion both on timeliness

grounds and on the merits.         With respect to timeliness, the

government argued that the motion was filed one day late and, thus,

was time-barred. The district court bypassed the temporal question

and went straight to the merits of the petitioner's claims.             It

analyzed whether and to what extent his prior convictions qualified

as convictions for violent felonies under the still-constitutional

force clause of the ACCA.        Examining the federal bank robbery

statute under which the petitioner had been convicted and noting

that several courts of appeals had recently held that the crime of

federal bank robbery, whether armed or unarmed, qualified as a

violent felony under the force clause, see, e.g., United States v.

McBride, 826 F.3d 293 (6th Cir. 2016); United States v. Jenkins,

651 Fed. App'x 920 (11th Cir. 2016); United States v. McNeal, 818

F.3d 141 (4th Cir. 2016),3 the district court ruled that the


     2  The petitioner did not dispute that his prior controlled
substance conviction continued to qualify as a predicate offense
for ACCA purposes.
     3  Some of the cases relied upon by the district court involved
determining whether bank robbery is a "crime of violence" under
the career offender provision of the sentencing guidelines. After
the district court ruled in this case, we similarly held that
federal bank robbery by "force and violence, or by intimidation"
is a crime of violence under the career offender guideline. United
States v. Ellison, 866 F.3d 32, 39-40 (1st Cir. 2017). Although
the career offender guideline uses the term "crime of violence"
and the ACCA uses the term "violent felony," the two terms have


                                 - 5 -
petitioner's three federal bank robbery convictions comprised

convictions for predicate offenses under the force clause of the

ACCA.4   On this basis, the court held that the petitioner was

properly sentenced as an armed career criminal and denied the

petitioner's motion.   This appeal followed.

          We are not wed to the district court's reasoning but,

rather, may affirm on any ground made manifest by the record.   See

United States v. George, ____ F.3d ___, ___ (1st Cir. 2018) [No.

17-1371, slip op. at 15]; InterGen N.V. v. Grina, 344 F.3d 134,

141 (1st Cir. 2003).   Although the district court chose to deny

the petition on the merits, we begin — and end — with the logically

antecedent question of timeliness, which we review de novo.

          The controlling statute imposes a one-year period of

limitations on the filing of a motion to vacate or correct a

sentence. See 28 U.S.C. § 2255(f); see also Clay v. United States,

537 U.S. 522, 524 (2003).   As relevant here, the limitations clock

starts to tick from the later of "the date on which the judgment

of conviction becomes final" or "the date on which the right


nearly identical meanings and, therefore, "decisions construing
one term inform the construction of the other." United States v.
Hart, 674 F.3d 33, 41 n.5 (1st Cir. 2012).
     4  Subsequent to the district court's ruling, this court held
that federal bank robbery by "force and violence, or by
intimidation" qualifies as a crime of violence under the force
clause of 18 U.S.C. § 924(c), which is even broader than the ACCA
force clause. See Hunter v. United States, 873 F.3d 388, 390 (1st
Cir. 2017); see also 18 U.S.C. § 2113(a).


                               - 6 -
asserted was initially recognized by the Supreme Court, if that

right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review." 28 U.S.C.

§ 2255(f).     Under the latter alternative, the limitations period

in section 2255 begins to run from the date that the right is first

recognized by the Supreme Court, not from the date that the Court

announces that the right is made retroactive.    See Dodd v. United

States, 545 U.S. 353, 358-59 (2005).    Thus, the petitioner had one

year from the later of these dates in which to move to vacate or

correct his sentence.

          The date on which the petitioner's conviction became

final was October 5, 2015, when the Supreme Court denied certiorari

in his case.     See Clay, 537 U.S. at 527.   The date on which the

right asserted was initially recognized by the Supreme Court was

June 26, 2015, when the Supreme Court issued its opinion in Johnson

II.   See 135 S. Ct. at 2251.    It follows that the last possible

date on which the petitioner could have made a timeous filing of

his motion was October 5, 2016 (one year after the Supreme Court

denied his certiorari petition).        See Clay, 537 U.S. at 527;

Butterworth v. United States, 775 F.3d 459, 468 (1st Cir. 2015).

Yet, the petitioner did not file his motion to vacate or correct

his sentence in the district court until October 6, 2016.      That

was one day late.




                                - 7 -
           To be sure, the one-year limitations period for filing a

motion under section 2255 is non-jurisdictional and, thus, subject

to equitable tolling.     See Ramos-Martínez v. United States, 638

F.3d 315, 322 (1st Cir. 2011). A court's power to invoke equitable

tolling must be exercised on a "case-by-case basis."       Riva v.

Ficco, 615 F.3d 35, 39 (1st Cir. 2010) (quoting Holland v. Florida,

560 U.S. 631, 650 (2010)).     And even where a court has the raw

power to invoke equitable tolling, that power should be exercised

"sparingly."   Neverson v. Farquharson, 366 F.3d 32, 42 (1st Cir.

2004).

           It is the petitioner's burden to demonstrate to a court

why the circumstances of his case justify equitable tolling of the

limitations period.   See Holmes v. Spencer, 685 F.3d 51, 62 (1st

Cir. 2012).    To carry this burden, the petitioner must show "(1)

that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely

filing."   Holland, 560 U.S. at 649.    Put simply, the petitioner

must satisfy the court that circumstances beyond his control

prevented him from filing his motion within the one-year window

provided by section 2255(f).    See Lattimore v. Dubois, 311 F.3d

46, 55 (1st Cir. 2002).

           The petitioner has not made such a showing.   To begin,

he has not proffered any facts sufficient to justify his tardiness.

Indeed, he has not in any way attempted to justify his late filing.


                               - 8 -
Nor does he give any reasons, compelling or otherwise, that would

support a decision to excuse his tardiness.    To cinch matters, we

note that the issue of timeliness was clearly raised by the

government both in the district court and in this court, yet the

petitioner's briefing is wholly silent on the subject.         This

"paucity of information" itself erects an insurmountable barrier

for the petitioner. Ramos-Martínez, 638 F.3d at 324.     He has had

ample opportunity to attempt to justify his tardiness, and his

silence speaks volumes.     Consequently, the one-year limitations

period controls.

            We need go no further. For the reasons elucidated above,

the denial of the petitioner's motion to vacate or correct his

sentence is summarily



Affirmed.    See 1st Cir. R. 27.0(c).




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