United States v. 2020-06-10 | 18-16399 | USA V. BARRY GRAY | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BARRY ADDISON GRAY,

Defendant-Appellant.

No. 18-16399

D.C. Nos. 2:16-cv-01476-JAD
2:95-cr-00324-JAD-1

MEMORANDUM
*

Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding

Submitted June 8, 2020
**

San Francisco, California

Before: MILLER and HUNSAKER, Circuit Judges, and SCHILTZ,
***
District
Judge.

Barry Addison Gray appeals the denial of his 28 U.S.C. § 2255 motion.
After conducting a de novo review, we affirm the judgment of the district court, as

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

***
The Honorable Patrick J. Schiltz, United States District Judge for the
District of Minnesota, sitting by designation.
FILED

JUN 10 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-16399
Gray’s motion is clearly untimely under United States v. Blackstone, 903 F.3d
1020, 1026-28 (9th Cir. 2018). See also United States v. Olsen, 704 F.3d 1172,
1178 (9th Cir. 2013) (standard of review); Dunne v. Henman, 875 F.2d 244, 247
(9th Cir. 1989) (“[W]e can affirm on any basis shown by the record.”) (citation
omitted). Blackstone binds this panel, as it is not “clearly irreconcilable” with the
Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). See
United States v. Shelby, 939 F.3d 975, 978 (9th Cir. 2019) (“A three-judge panel
can only decline to apply prior Circuit precedent ‘clearly irreconcilable’ with a
subsequent Supreme Court decision.”) (citation omitted).
AFFIRMED.