Cross v. USA

Filing 17

MEMORANDUM AND ORDER IT IS HEREBY ORDERED Cross's Motion 13 is DENIED as out of time. Signed by District Judge Rodney W. Sippel on 11/20/18. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TONY FRANCIOSA CROSS,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM & ORDER
This matter is before me on Petitioner Tony Franciosa Cross’s Amended
Motion to Vacate, Set Aside, or Correct his sentence [6]. The United States
Attorney opposes Cross’s motion [13].
I originally sentenced Cross to 216 months of incarceration on January 21,
2004, after he pled guilty to Possession with Intent to Distribute Cocaine Base in
violation of 21 U.S.C. § 841(a)(1). Cross argues that I should resentence him to
time served for that crime. After carefully reviewing all of Cross’s submissions,
and the United States Attorney’s arguments in response, I will deny Cross’s
Motion as out of time.
Discussion
A petitioner in Cross’s position must move to vacate, set aside, or correct his
sentence within one year of the date the judgment against him becomes final. See

28 U.S.C. § 2255(f)(1). Cross argues that 28 U.S.C. § 2255(f)(3) instead applies to
his case. § 2255(f)(3) provides that a motion for resentencing is timely if a
petitioner files it within a year of “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.” 28
U.S.C. § 2255(f)(3).
Cross cites the ruling in Johnson v. United States, which held that increased
sentences resulting from the so-called “residual clause” in the Armed Career
Criminal Act violate the Due Process Clause of the Constitution. 135 S. Ct. 2551,
2557 (2015). He argues that holding applies to his case, and that he was
unconstitutionally sentenced under an identical residual clause in the mandatory
guidelines. Petitioner’s Motion [6] at 4-6. Cross initially filed his motion for relief
under Johnson within the one year period required by 28 U.S.C. § 2255(f)(3).
During the time Cross’s motion was pending before me, the Eighth Circuit
decided Russo v. United States, 902 F.3d 880, which is directly on point. Russo
clarified that Johnson did not announce a new rule regarding defendants sentenced
under the residual clause in the mandatory guidelines. 902 F.3d at 883. According
to Russo, “Johnson did not recognize the right asserted” by Cross. Id. Cross “thus
cannot benefit from the limitations period in § 2255(f)(3),” and his petition is
untimely. Id.

In deciding this case, I do not reach the merits of Cross’s claim that a
sentence based on the mandatory guidelines’ residual clause violates the Due
Process Clause of the Constitution. That claim remains an open question. See id.
(citing Beckles v. United States, 137 S.Ct. 886, 903 n.4 (Sotomayor, J., concurring
in the judgment)).
Conclusion
IT IS HEREBY ORDERED Cross’s Motion is DENIED as out of time.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 20th day of November, 2018.