REPORT AND RECOMMENDATIONS

KATHERINE P. NELSON, Magistrate Judge.

This matter is before the Court on Alphonsia Juawann Lewis' ("Lewis") Motion to Vacate, Set Aside, or Correct pursuant to U.S.C. § 2255. (Doc. 35). For the reasons discussed herein, the undersigned RECOMMENDS that Lewis' motion be DISMISSED as time barred.

BACKGROUND

On July 21, 2015, Lewis pleaded guilty to being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). (Doc. 20, 33 at 1). On December 3, 2015, Lewis was sentenced to 84 months in the custody of the Bureau of Prisons. (Doc. 33). The final judgment of conviction was entered December 9, 2015. (Doc. 33). Lewis did not file an appeal.

Lewis is currently in state custody, and will begin serving his federal sentence when his state sentence concludes. (Doc. 35 at 5). Section "2255 is available to a prisoner in state custody attacking a federal sentence scheduled to be served in the future." Simmons v. United States, 437 F.2d 156, 159 (5th Cir. 1971).1

On November 6, 2017, Lewis filed the subject § 2255 petition, arguing that the United States unlawfully enhanced his sentence and that he is due to be resentenced. (Doc. 35 at 1-2). Because the § 2255 petition appeared to be untimely, and Lewis did not address the issue of timeliness, the undersigned issued a show cause order to provide Lewis with the opportunity to do so. (Doc. 36).2 In his response, Lewis argues that he is entitled to equitable tolling of the statute of limitations based on his actual innocence. (Doc. 37).

DISCUSSION

The Anti-terrorism and Effective Death Penalty Act AEDPA imposes a one-year statute of limitations for filing a § 2255 motion. See 28 U.S.C. § 2255; Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). For § 2255 motions, the statute of limitations runs from the latest of the following trigger dates:

28 U.S.C. § 2255(f).

Neither the contents of the § 2255 motion nor Lewis' response to the Court's show cause order indicate that the circumstances set forth in § 2255(f)(2)-(4) apply here.3 Thus, § 2255(f)(1) provides the applicable limitations period, and that Lewis had one year from the date his conviction became final to file his § 2255 petition. See 28 U.S.C. § 2255(f)(1). Judgment was entered on December 9, 2015, and Lewis had 14 days from that date to file a notice of appeal. Fed. R. App. P. 4(b)(1)(A)(i). Because Lewis did not appeal his December 9, 2015 conviction, it became final December 23, 2015, when the 14 day time limit for filing a notice of appeal expired. Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011). Therefore, Lewis had until December 23, 2016, to timely file his petition pursuant to § 2255(f)(1). However, Lewis did not file this petition until early November 2017.4 See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) ("Absent evidence to the contrary . . ., we will assume that Washington's motion was delivered to prison authorities the day he signed it.").

Lewis argues that he is entitled to the actual innocence exception to the statute of limitations. (Doc. 37).5 A federal court can consider the merits of an untimely § 2255 motion if the petitioner establishes that he is factually innocent of the crime for which he was convicted. See San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.) ("The actual innocence exception is `exceedingly narrow in scope,' and the petitioner must demonstrate that he is factually innocent rather than legally innocent."), cert. denied sub nom. San Martin v. Tucker, 565 U.S. 843, 132 S.Ct. 158, 181 L.Ed.2d 73 (2011). Indeed, in McQuiggin v. Perkins, 569 U.S. 383, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013), the Supreme Court held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or, as in this case, expiration of the statute of limitations." 133 S.Ct. at 1928. However, the Supreme Court also notably cautioned that "tenable actual-innocence gateway pleas are rare[.]" Id. (emphasis supplied). "`[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" Id., quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995) (other citation omitted).

Lewis argues that he is entitled to the actual innocence exception because he is actually innocent of the attempted murder charge that formed the basis of a sentencing enhancement. (Doc. 37 at 3, ¶ 7). Lewis has made no argument that he is actually innocent of the § 922(g)(1) charge for which he was convicted. "Under the actual innocence exception—as interpreted by current Supreme Court doctrine—a movant's procedural default is excused if he can show that he is actually innocent either of the crime of conviction or, in the capital sentencing context, of the sentence itself." McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (citing Dretke v. Haley, 541 U.S. 386, 388 (2004)). However, the Court of Appeals has held that the actual innocence exception to procedural default does not apply to a defendant's claim that he is actually innocent of a sentencing enhancement where that claim is based on legal, as opposed to factual, innocence. Id. at 1198-99.

Further, allegations of error in the application of the Sentencing Guidelines are not constitutional claims and they do not implicate the doctrines of "actual innocence" or "fundamental miscarriage of justice." Gilbert v. United States, 640 F.3d 1293, 1318-23 (11th Cir. 2011). The Eleventh Circuit has held that a "claim that a sentencing guidelines provision was misapplied . . . is not a constitutional claim. If it were, every guidelines error would be a constitutional error." Gilbert, 640 F.3d at 1321. Thus, "[i]n Gilbert and subsequent decisions, the Eleventh Circuit has made clear that an error in application of the sentencing guidelines . . . does not constitute a `fundamental miscarriage of justice' or satisfy the `actual innocence' exception to the procedural-default doctrine and are therefore subject to the ordinary rules of procedural default, as long as the sentence imposed does not exceed the statutory maximum sentence that would have been applied absent the error." Allegree v. Carr, No. 2:11CV142-TMH, 2012 WL 6042198, at *2 n.3 (M.D. Ala. Oct. 23, 2012) (citing Gilbert, 640 F.3d at 1306; McKay, 657 F.3d at 1200; Bido v. United States, 438 F. App'x. 746, 748 (11th Cir. 2011); Orso v. United States, 452 F. App'x. 912, 914-15 (11th Cir. 2012)), report and recommendation adopted by 2012 WL 6042196 (M.D. Ala. Dec. 4, 2012); see also Frank v. United States, No. CR 103-045, 2012 WL 12969683, at *3 (S.D. Ga. Oct. 18, 2012) (the Eleventh Circuit has rejected the notion that "actual innocence" can apply to a Guidelines enhancement).6 Accordingly, Lewis has not satisfied the actual innocence exception to lift the procedural bar caused by his failure to timely file his § 2255 motion. Therefore, the undersigned RECOMMENDS that this matter be DISMISSED as time barred.7

CERTIFICATE OF APPEALABILITY ("COA")

A COA will issue only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Generally, a petitioner must demonstrate that reasonable jurists would find this court's assessment of the constitutional claims debatable or wrong. Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quotation omitted), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where, as here, claims have been rejected on procedural grounds, the petitioner must show that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.; Webster v. Moore, 199 F.3d 1256, 1257 n. 2 (11th Cir. 2000) (dismissal of habeas petition as time-barred is procedural). Lewis cannot make that showing. Since he is not entitled to a COA, he is not entitled to appeal in forma pauperis.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts; S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.