MEMORANDUM

J. FREDERICK MOTZ, District Judge.

Richard A. Schmidt has filed a motion under 28 U. S. C. §2255. The United States has filed a motion to dismiss on the grounds that the motion is untimely.

Unquestionably, Schmidt's motion is filed outside of the time limits of the statute. However, he relies upon the "actual innocence" exception that applies to otherwise untimely habeas actions. See United States v. Jones, 758 F.3d 579, 583 (4th Cir. 2014). He alleges that he is "actually innocent" because the Government failed to prove the "foreign commerce" element of the crime with which he is charged. Schmidt contends that his counsel was ineffective in not arguing that point.

The United States' position is that the actual innocence subsection does not apply because Schmidt does not contend that he did not travel from the Philippines to Cambodia to engage in illicit sexual conduct with a minor. The Government'sposition appears to be that because Schmidt's conduct was morally wrong and in violation of some law, he is not "actually innocent" of the crime with which he is charged.

The United States' position is incorrect. Schmidt is being held in custody of a violation of 18 U. S. c. §2423. One of the elements of the crime under that statute is that a defendant has engaged in interstate or foreign commerce.

That is not to say that on the merit Schmidt'sposition is correct. The United States has requested that if its motion to dismiss be denied, it be given an opportunityto respond to Schmidt's Section 2255 motion on the merits. That request is granted. The United States should file its oppositionon the merits to Schmidt's motion on or before December 2, 2014.