RECOMMENDATION OF THE MAGISTRATE JUDGE

WALLACE CAPEL, Jr., Magistrate Judge.

I. INTRODUCTION

On August 15, 2012, federal inmate Christine Albin ("Albin") filed this pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1. Albin challenges her 2007 guilty-plea convictions and sentence for conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of a firearm in relation to a drug-trafficking crime, in violation 18 U.S.C. § 924(c). The government maintains Albin's § 2255 motion is time-barred because it was filed after expiration of the one-year limitation period. Doc. No. 3. The court concludes the government is correct and that the § 2255 motion should be denied because it was not filed within the time allowed by federal law.

II. DISCUSSION

A. One-year Limitation Period

The timeliness of Albin's § 2255 motion is governed by 28 U.S.C. § 2255(f). That section provides:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—

28 U.S.C. § 2255(f).

On September 25, 2007, Albin pled guilty under a plea agreement to conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of a firearm in relation to a drug-trafficking crime, in violation 18 U.S.C. § 924(c). On December 4, 2007, she was sentenced to 138 months in prison (78 months for the conspiracy count followed by a consecutive term of 60 months for the § 924(c) count). Judgment was entered by the district court on December 13, 2007. Albin took no appeal. Therefore, her conviction was "final" on December 23, 2007.1 Under 28 U.S.C. § 2255(f)(1), Albin had until December 23, 2008, to file a timely § 2255 motion. Her § 2255 motion filed on August 15, 2012, is untimely under § 2255(f)(1).

Albin maintains her § 2255 motion is timely — presumably under 28 U.S.C. § 2255(f)(3) — because it was filed within one year after the Fourth Circuit Court of Appeals' decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). See Doc. No. 1 at 10. In Simmons, the Fourth Circuit applied Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), to find that a federal defendant's prior North Carolina conviction for non-aggravated, first-time marijuana possession was for an offense not "punishable by imprisonment for a term exceeding one year," and thus did not qualify as a predicate felony conviction for purposes of the Controlled Substances Act. Simmons, 649 F.3d at 248-49. Carachuri, which was decided by the Supreme Court in June 2010, dealt with under what circumstances a prior conviction for simple possession of a controlled substance can constitute an "aggravated felony" under 8 U.S.C. § 1229b(a)(3). The Supreme Court held that the statutory enhancements for recidivism regarding simple possession under 18 U.S.C. § 844 do not render a prior conviction a conviction for an aggravated felony, where recidivism is demonstrated by the record but not actually alleged or raised, 560 U.S. at 577-82, and that a federal court "cannot, ex post, enhance the state offense of record just because facts known to it would have authorized a greater penalty under either state or federal law," id. at 576-77.

In seeking to "extend" the limitation period for filing her § 2255 motion, Albin appears to allege her sentence is unlawful under the holdings of Carachuri and Simmons, an allegation predicated on her apparent belief that one of the crimes of which she was convicted in this court in 2007 was possession of a firearm as a convicted felon2 and that, under Carachuri and Simmons, the prior predicate conviction for the felon-in-possession charge was not a felony. See Doc. No. 1 at 10. The simple answer to this claim is that Albin was not convicted in this court in 2007 for possession of a firearm as a convicted felon. Rather, the firearm offense to which she pled guilty in 2007 was possession of a firearm in relation to a drug-trafficking crime, a violation 18 U.S.C. § 924(c). A prior predicate felony is not an element of that offense. Carachui and Simmons are inapplicable to Albin's 2007 convictions in this court.3

In an amended pleading (Doc. No. 5), Albin says she is actually innocent of the crime of possession of a firearm in relation to a drug-trafficking crime to which she pled guilty. Actual innocence may provide a "gateway" to review of an otherwise time-barred § 2255 claim. See House v. Bell, 547 U.S. 518, 536-37 (2006).

Albin argues that under Bailey v. United States, 516 U.S. 137 (1995), her conduct did not establish criminal liability under 18 U.S.C. § 924(c), particularly because she did not "actively employ" a firearm during the alleged drug-trafficking crime. Doc. No. 5. In Bailey, the Supreme Court held that a conviction under the "use" prong of § 18 U.S.C. 924(c) requires the government to demonstrate "active employment" of the firearm, not its mere possession, during and in relation to the drug-trafficking crime. 516 U.S. at 143-44. However, the pre-1998 version of § 924(c) made it an offense only to use or carry a firearm during and in relation to the drug-trafficking crime. The Bailey decision's narrow interpretation of "use" under § 924(c) prompted Congress to amend the statute in 1998 to add language directed to possessing a firearm "in furtherance of" the predicate crime. See United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002). Albin's offense and indictment occurred after the 1998 revision of the statute.

There are two ways to violate § 924(c): the statute makes it an offense to either (1) use or carry a firearm during and in relation to a crime of violence or drug trafficking crime or (2) possess a firearm in furtherance of such crime. See Timmons, 283 F.3d at 1250-53; United States v. Daniel, 173 F. App'x 766, 770 (11th Cir. 2006) ("Thus, there are two separate ways to violate the statute: to use or carry a firearm during and in relation to a drug trafficking crime or to possess a firearm in furtherance of a drug trafficking crime.").

In pleading guilty, Albin acknowledged she knowingly used and carried, during and in relation to, and possessed a firearm in furtherance of, a drug-trafficking crime. Gov. Ex. B at 8. The facts underlying Albin's guilty plea showed she was arrested while driving a car carrying large amounts of methamphetamine and cocaine and that a Glock 9mm pistol was found inside the car. See Case No. 2:06cr213-MEF, Doc. No. 153 at 4-5. Albin acknowledged she trafficked methamphetamine and cocaine. Gov. Ex. B at 8.

To establish that a firearm was possessed "in furtherance" of a drug trafficking crime, the government must show "`some nexus between the firearm and the drug selling operation.'" Timmons, 283 F.3d at 1253 (quoting United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001)). "The nexus between the gun and the drug operation can be established by `. . . accessibility of the firearm, . . . proximity to the drugs or drug profits, and the time and circumstances under which the gun is found.'" Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)).

Moreover, for purposes of the other method of violating § 924(c), it is well settled that the phrase "carries a firearm" applies "to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies." Muscarello v. United States, 524 U.S. 125, 126-27 (1998); see also United States v. Frye, 402 F.3d 1123, 1128 (11th Cir. 2005) ("A defendant carries a firearm if it is carried directly on his person or carried in his vehicle."). To prove the "in relation to" requirement of the statute, the government must demonstrate that the firearm had "some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence." Smith v. United States, 508 U.S. 223, 238 (1993). "The gun at least must facilitate, or have the potential of facilitating, the drug trafficking offense." Id. (citations and internal punctuation omitted); see also Frye, 402 F.3d at 1128.

Here, the proximity of the gun to the drugs Albin was trafficking established a nexus sufficient to prove a violation of § 924(c). Moreover, the firearm had at least the potential of facilitating the drug-trafficking offense. Smith, 508 U.S. at 238; Frye, 402 F.3d at 1128. Thus, there was a sufficient basis to establish that Albin's conduct subjected her to criminal liability under both methods of proving a violation of § 924(c). Albin's cursory argument cannot establish her actual innocence, and her assertion of actual innocence provides no gateway for review of her time-barred claims.

In sum, Albin's § 2255 motion is untimely under § 2255(f)(1).

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the 28 U.S.C. § 2255 motion be denied as it was not filed within the controlling federal limitation period and that this case be dismissed with prejudice. It is further

ORDERED that the parties are DIRECTED to file any objections to the said Recommendation on or before September 8, 2014. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive, or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.