RECOMMENDATION OF THE MAGISTRATE JUDGE

SUSAN RUSS WALKER, Chief Magistrate Judge.

I. INTRODUCTION

On August 16, 2012, federal inmate Rhonda Jennings ("Jennings") filed this pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1. Jennings challenges her 2005 guilty-plea convictions and sentence for conspiracy to possess with intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). The government maintains that Jennings'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 Jennings's § 2255 motion is governed by 28 U.S.C. § 2255(f). That section provides:

28 U.S.C. § 2255(f).

On August 19, 2005, Jennings pled guilty under a plea agreement to conspiracy to possess with intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). On November 29, 2005, she was sentenced to 181 months in prison (121 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 1, 2005. Jennings took no appeal. Therefore, her conviction was "final" on December 12, 2005, the first business day after December 11, 2005.1 Under 28 U.S.C. § 2255(f)(1), Jennings had until December 12, 2006, to file a timely § 2255 motion. Her § 2255 motion filed on August 16, 2012, is untimely under § 2255(f)(1).

Jennings maintains that 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 4, 5, 10-13. 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, Jennings appears to claim 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 2005 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 4, 5, 10-13. However, Jennings was not convicted in this court in 2005 for possession of a firearm as a convicted felon. Rather, the firearm offense to which she pled guilty in 2005 was possession of a firearm in furtherance of a drug-trafficking crime, a violation of 18 U.S.C. § 924(c). A prior predicate felony is not an element of that offense. Carachui and Simmons are inapplicable to Jennings's 2005 convictions in this court.3

Jennings maintains that she is actually innocent of the crime of possession of a firearm in furtherance of a drug-trafficking crime to which she pled guilty in 2005, and that her actual innocence excuses the untimeliness of her § 2255 motion. Doc. No. 5 at 2-5. 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). Jennings 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), because she did not "actively employ" a firearm during the alleged drug-trafficking crime. Doc. No. 5 at 3-5. 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). Jennings's offense and indictment occurred after the 1998 revision of the statute.4

By pleading guilty to the § 924(c) charge, Jennings acknowledged facts sufficient to show she knowingly possessed a firearm in furtherance of a drug-trafficking crime. See Case No. 2:05cr1-4-WHA, Doc. Nos. 1 and 85. The facts underlying Jennings's guilty plea showed that a search of the residence she shared with her boyfriend uncovered four ounces of methamphetamine, several handguns, approximately $9,300 in cash, and "the usual indicia of drug trafficking." Id., Doc. No. 119 at 5-6. Jennings told investigating officers she obtained some of the firearms as "payment" for narcotics she dealt. Id., Doc. No. 85 at 3-4; Doc. No. 119 at 5-6. Jennings pled guilty to both the § 924(c) count and to conspiracy to distribute methamphetamine. Despite her guilty plea, Jennings now maintains that she was innocent of the § 924(c) charge because the firearms seized during the search of her residence were found on top of a kitchen cabinet. Doc. No. 5 at 4.

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)).

Here, the proximity of the firearms to Jennings's ongoing drug-trafficking activities established a nexus sufficient to prove a violation of § 924(c) for knowingly possessing a firearm in furtherance of a drug-trafficking crime. The holding in Bailey upon which Jennings seeks to rely might affect her conviction only if she were convicted under the pre-amendment version of § 924(c) providing criminal liability only where the defendant has "used or carried" the firearm during and in relation to the drug-trafficking crime. However, her offense and indictment took place well after the 1998 amendment. There was a sufficient basis to establish that Jennings's conduct subjected her to criminal liability under § 924(c). Her argument relying on Bailey does not establish her actual innocence, and her assertion of actual innocence provides no gateway for review of her time-barred claims.

In sum, Jennings'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 shall file any objections to this Recommendation on or before September 9, 2014. A party must specifically identify the findings in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's proposed findings and recommendations shall bar a party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings 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).