                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    June 28, 2016
                         FOR THE TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                     _________________________________              Clerk of Court

UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

v.                                                   No. 16-7004
                                          (D.C. No. 6:15-CV-00270-FHS &
BILLY ROSS MOUDY,                            No. 6:96-CR-00019-FHS-1)
                                                     (E.D. Okla.)
      Defendant-Appellant.

                     _________________________________

                        ORDER AND JUDGMENT*
                     _________________________________

Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
                     _________________________________


      Mr. Billy Ray Moudy moved for relief under 28 U.S.C. § 2255

based on constitutional rights newly recognized by the U.S. Supreme

Court. When the district court ruled, the U.S. Supreme Court had not yet

deemed the asserted constitutional right retroactive to cases on collateral

review. As a result, the district court dismissed the § 2255 motion based



*
     Oral argument would not materially aid our consideration of the
appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
on timeliness. During the pendency of the appeal, however, the U.S.

Supreme Court expressly held that the newly recognized constitutional

right is retroactively applicable to cases on collateral review. As a result,

the government acknowledges that the matter should be remanded to the

U.S. District Court for consideration of the merits. We agree.

                                    ***

     In considering whether the district court erred on timeliness, we

engage in de novo review. United States v. Denny, 694 F.3d 1185, 1189

(10th Cir. 2012).

     In 1996, Mr. Moudy was convicted on federal charges involving

possession of a firearm after a felony conviction, burglary of a U.S. Post

Office, robbery, and use of a firearm during a crime of violence. In

imposing the sentence, the district court concluded that Mr. Moudy was

subject to a mandatory minimum sentence of fifteen years based on his

status as an armed career criminal. After unsuccessfully appealing the

conviction, Mr. Moudy sought relief under 28 U.S.C. § 2255, claiming in

part that the pertinent statutory and guideline provisions were void

because of their vagueness.

     For this claim, Mr. Moudy relied on a new constitutional holding by

the U.S. Supreme Court in Johnson v. United States, __ U.S. __, 135 S.

Ct. 2551, 2557-58 (2015). After the district court ruled, the U.S.

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Supreme Court held that this new constitutional holding was retroactive

to cases pending on collateral review. Welch v. United States,   U.S. ,

136 S. Ct. 1257 (2016).

      A one-year limitations period ordinarily exists, and the conviction

at issue took place roughly twenty years ago. See 28 U.S.C. § 2255(f)(3).

But the limitations period contains an exception for claims involving

rights that the U.S. Supreme Court has “newly recognized” and “made

retroactively applicable to cases on collateral review.” Id.

      Under this exception, the one-year period begins to run from the

date that the U.S. Supreme Court recognized the constitutional right

being asserted. See Dodd v. United States, 545 U.S. 353, 359-60 (2005).

The U.S. Supreme Court recognized the underlying constitutional right

on June 26, 2015, when the Court issued Johnson v. United States. Mr.

Moudy filed the § 2255 motion within three weeks of the Supreme

Court’s issuance of Johnson. Thus, as the government acknowledges, the

appeal is timely and the action should be remanded for consideration of

the merits.




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Reversed and remanded for consideration of the merits.


                            Entered for the Court



                            Robert E. Bacharach
                            Circuit Judge




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