                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3186
                                    ___________

Daniel Alan Nelson,                      *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
United States of America,                *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: June 18, 1999
                                  Filed: July 21, 1999
                                   ___________

Before LOKEN, BRIGHT and ROSS, Circuit Judges.
                           ___________

BRIGHT, Circuit Judge.
                                          I.

       On September 11, 1991, a jury convicted Daniel Alan Nelson for possession of
an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871, and as a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Upon these
convictions, the district court imposed a mandatory sentence of 180 months (15 years)
imprisonment. Nelson directly appealed his convictions to this court and we affirmed.
United States v. Nelson, 984 F.2d 894 (8th Cir. 1993), cert. denied, 508 U.S. 966
(1993). Subsequently, on September 9, 1997, Nelson filed a pro se motion for post
conviction relief, under 28 U.S.C. § 2255, from his conviction as a felon in possession
of a firearm. The district court1 denied Nelson's petition, finding that it was time barred
by provisions of the Antiterrorism and Effective Death Penalty Act. For the reasons
which follow, we agree.

                                            II.

       Two events which affect this case occurred following the conclusion of Nelson's
direct appeal of his convictions. First, effective April 24, 1996, Congress enacted the
Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub. L. No. 104-
132, Title I, § 105 (1996), which limits the time petitioners may bring § 2255 motions
to one year, running from the latest of:

             (1)    the date on which the judgment of conviction becomes final;

            (2) the date on which the impediment to making a motion
      created by governmental action in violation of the Constitution or laws of
      the United States is removed, if the movant was prevented from making
      a motion by such governmental action;

            (3) the date on which the right 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; or

             (4) the date on which the facts supporting the claim or claims
      presented could have been discovered through the exercise of due
      diligence.

       The second event of importance on which Nelson relies is the Supreme Court's
decision on January 7, 1997, in Old Chief v. United States, 519 U.S. 172 (1997). In


      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
                                           –2–
Old Chief, the Supreme Court resolved a split of authority in the federal courts and
ruled that evidence of prior felony convictions, used to support a charge under 18
U.S.C. § 922(g)(1), should not be heard by the jury where the defendant offers to
stipulate to the existence of such convictions.

       At his trial, Nelson offered to stipulate to prior felony convictions, but the district
court nevertheless permitted the jury to hear testimony relating to his two prior felony
convictions. Nelson did not, however, assert that ruling as error in his direct appeal.

      Now, in the context of this proceeding, Nelson claims that Old Chief furnishes
him a ground for relief from his conviction because it serves as a new rule of the
Supreme Court. Further, he asserts that insofar as he brought this proceeding within
one year of the Old Chief decision, his petition is timely.

        Considering the provisions of the AEDPA, we observe that § 2255(3) restates,
in two elements, the rule applicable to collateral relief from a conviction when the
Supreme Court speaks. If the right is both newly recognized and operates retroactively,
the Supreme Court's decision conferring that right may offer an avenue for § 2255
relief. In such a case, the statute of limitations for habeas corpus relief expires one year
following the decision. But if the claim for relief is not founded on the new recognition
of a right by the Supreme Court meant to be applied retroactively, the alleged right does
not, in any event, afford a ground for relief regardless of time limitations in the AEDPA
and, in addition, does not extend or change the time limitation already running.

       Thus, we examine the rule in Old Chief and determine that Nelson's petition
relying on that case does not establish a ground for relief. The retroactivity issue is
governed by the test explained in Teague v. Lane, 489 U.S. 288, 305-10 (1989), and
its progeny. Teague applies when the Supreme Court announces a new rule of criminal
procedure. Essentially, if a decision announces a "new rule" of criminal procedure, it
is not to be applied retroactively to convictions that have already become final when

                                            –3–
the decision is announced unless the new rule falls within one of two narrow
exceptions. One exception is applicable when the new rule places certain kinds of
primary, private individual conduct beyond the power of the criminal law-making
authority to proscribe, or otherwise prohibits imposition of a certain type of punishment
for a class of defendants because of their status or offense. The second exception
applies when a new "watershed" rule of criminal procedure implicates the fundamental
fairness and accuracy of a criminal proceeding. Neither of these exceptions apply in
this case. The decision in Old Chief merely announced a new rule concerning the
admissibility of evidence in a criminal case. It did not take the conduct for which
Nelson was charged beyond the power of Congress to prohibit or punish. Nor did it
announce a principle so grounded in fundamental fairness that it may be considered of
watershed importance.

      Indeed, a similar issue was examined in In re Green, 144 F.3d 384 (6th Cir.
1998). In that case, our sister circuit reached the same conclusion, holding that:

             Old Chief does not fall within either one of the two narrow
      exceptions noted in Teague. See Caspari, 510 U.S. at 396, 114 S.Ct. at
      956-57. The decision in Old Chief did not place certain kinds of primary,
      private individual conduct beyond the power of the criminal law-making
      authority to proscribe, or otherwise prohibit imposition of a certain type
      of punishment for a class of defendants because of their status or offense;
      nor did it announce a new "watershed" rule of criminal procedure
      implicating the fundamental fairness and accuracy of the criminal
      proceeding. See Caspari, 510 U.S. at 396, 114 S.Ct. at 956-57. Hence,
      the rule is not retroactive, and is therefore inapplicable on collateral
      review.

Id. at 387.




                                          –4–
                                           III.

       Thus, in these circumstances, Nelson shows no basis for relief in section 3.
Finding no other grounds to save his petition, we affirm the dismissal of Nelson's
habeas corpus petition on statute of limitations grounds. This ground also indicates that
the claim for habeas relief, regardless of limitations on bringing the action, is without
merit.2

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
        The limitation for bringing the action and the merits must be intertwined. If not,
a claim of merit arising from a later Supreme Court opinion would be extinguished on
limitation grounds before the petitioner could know that a valid claim existed.
                                           –5–
