                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1609
                         ___________________________

                                    Thomas Boaz

                         lllllllllllllllllllllMovant - Appellant

                                           v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                              Submitted: June 10, 2015
                                Filed: June 29, 2015
                                   [Unpublished]
                                  ____________

Before GRUENDER, MELLOY, and BENTON, Circuit Judges.
                         ____________

PER CURIAM.

        Three years after his conviction became final, Thomas Boaz filed a petition for
relief pursuant to 28 U.S.C. § 2255. He alleged Descamps v. United States, 133 S. Ct.
2276 (2013), created a "newly recognized [right] . . . made retroactively applicable
to cases on collateral review," 28 U.S.C. § 2255(f)(3), that should excuse the
untimeliness of his petition. Because Descamps did not make any new argument
available to Boaz, we affirm the dismissal of his petition as untimely.

                                           I.

       In 2006, a jury convicted Boaz of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). At that time, the district court sentenced him as an
armed career criminal pursuant to 18 U.S.C. § 924(e), finding that he previously had
been convicted of three violent felonies, including an Arizona conviction for burglary
under Ariz. Rev. Stat. Ann. § 13-1506 (1978). On appeal, we held the burglary
conviction qualified as a violent felony. United States v. Boaz, 558 F.3d 800, 806–07
(8th Cir. 2009). Boaz also appealed as to one of the other predicate offenses, arguing
the state court record as presented at his federal sentencing failed to establish he was
the person convicted in the prior state court proceedings. Id. at 808–09. We vacated
his sentence and remanded for the district court to address the identity issue. Id. at
809. On remand, the district court rejected Boaz's arguments on the identity issue
and, again, sentenced him as an armed career criminal. He unsuccessfully appealed
the identification issue to our court. United States v. Boaz, 598 F.3d 936 (8th Cir.
2010). The Supreme Court subsequently denied his petition for writ of certiorari on
October 4, 2010, at which time his conviction became final. Boaz v. United States,
562 U.S. 874 (2010).

       Almost three years later, on September 3, 2013, Boaz filed the present petition
for relief pursuant to 28 U.S.C. § 2255. Recognizing that his petition would
otherwise be barred by the one-year limitation period of § 2255(f)(1), Boaz argued
that the Supreme Court's opinion in Descamps created a new rule of law that triggered




                                          -2-
a new one-year limitation period pursuant to § 2255(f)(3).1 The district court denied
relief.2

                                          II.

      We review de novo the district court's determination that a § 2255 petition is
untimely. Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008).

       A crime alleged as a qualifying predicate offense is overinclusive if it
criminalizes both conduct that qualifies as a violent felony and conduct that does not.
See Descamps, 133 S. Ct. at 2281. An overinclusive offense is "divisible" if it lists
separate, alternative elements to identify the different manners in which the offense
may be committed. Id. An overinclusive offense is not divisible if, without setting
forth alternative elements to define the offense, it broadly encompasses both conduct
that qualifies as a violent felony and conduct that does not. Id.

       Prior to Descamps, it was well established that the modified categorical
approach could be used to examine limited materials to determine whether a prior
conviction for an overinclusive offense qualified as a violent felony. See Shepard v.
United States, 544 U.S. 13, 26 (2005). In Descamps, the Supreme Court clarified that
the modified categorical approach could be used only where the underlying
overinclusive offense was divisible. 133 S. Ct. at 2285. Therefore, both before and
after Descamps, the modified categorical approach could be used to assess whether
a divisible and overinclusive offense qualified as a violent felony.



      1
       Boaz raised other issues, but they are not within the scope of his certificate of
appealability and are not properly before our court.
      2
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.

                                          -3-
       Boaz argues that the Arizona statute at issue is divisible in that it sets forth
alternative elements for obtaining a conviction. Because Descamps did not change
the analysis employed to assess whether a divisible and overinclusive statute defines
a violent felony, Descamps presents no new rule material to Boaz's argument. As
such, Descamps cannot excuse the untimeliness of Boaz's § 2255 petition.

      We affirm the judgment of the district court.
                      ______________________________




                                         -4-
