United States District Court, D. Alaska
ORDER OF DISMISSAL
JOHN W. SEDWICK, District Judge.
On May 20, 2014, Gabriel Clark-Aigner, a self-represented federal prisoner, filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Mr. Clark-Aigner claims (1) that he did not "use or carry a firearm" in "furtherance" of his crime, as required in the post-1998 version of 18 U.S.C. § 924(c); (2) that "§ 924(c)(1) does not authorize multiple convictions for a defendant who committed two predicate offenses with a single use of a single firearm in violation of due process, and [his 6th amendment right to] effective assistance of counsel;" and (3) that he "was denied effective assistance of counsel by failing to timely file a notice of appeal in violation of due process... and his right to effective assistance of counsel."
1. The statute of limitations has expired.
Mr. Clark-Aigner was convicted and sentenced, pursuant to a plea agreement, on August 7, 2002. Mr. Clark-Aigner filed no appeal,  but he filed a motion under § 2255 in 2005,  which was dismissed in 2006, due to the running of the statute of limitations. Because, Mr. Clark-Aigner alleged no facts indicating that he was "prevented from making a motion by... governmental action;" that he is basing his motion on a "right [which] has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review;" or that he is basing his motion on newly-discovered facts,  the statute of limitations appears to have expired. So, after Mr. Clark-Aigner filed his current § 2255 motion, the Court ordered him to show (1) that he filed his motion within the one-year statute of limitations, or (2) that the Court should toll the one-year statute of limitations; and Mr. Clark-Aigner was told that, if he intends to rely upon equitable tolling, he must show (a) that he has been pursuing his rights diligently, and (b) that some extraordinary circumstance, beyond his control, prevented his timely filing.
2. The "miscarriage of justice" exception to time limitations does not apply in this case.
Instead, Mr. Clark-Aigner's response relies upon McQuiggin v. Perkins , 133 S.Ct. 1924 (2013), and the "actual innocence gateway... through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup  and House,  or [the] expiration of the statute of limitations." In fact, the Supreme Court has "applied the miscarriage of justice exception to overcome various procedural defaults." But, in Perkins , the Supreme Court cautioned:
[T]enable actual-innocence gateway pleas are rare: "[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." [quoting Schlup, 513 U.S. at 329; see House, 547 U.S. at 538] (emphasizing that the Schlup standard is "demanding" and seldom met). And in making an assessment of the kind Schlup envisioned, "the timing of the [petition]" is a factor bearing on the "reliability of th[e] evidence" purporting to show actual innocence. [quoting Schlup, 513 U.S. at 332].
[A] federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner's part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown.
So, the Supreme Court explains,
AEDPA's time limitations apply to the typical case in which no allegation of actual innocence is made. The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows "it is more likely than not that no reasonable juror would have convicted [the petitioner]." [quoting Schlup, 513 U.S. at 329 (internal quotation marks omitted)]. Section 2244(d)(1)(D) is both modestly more stringent (because it requires diligence) and dramatically less stringent (because it requires no showing of innocence).
Mr. Clark-Aigner argues that he is actually innocent because, "in light of the interpretation of 924(c) announced in Bailey, ' his conduct did not violate the statute; hence the conviction must be vacated." Likewise, in Vosgien v. Persson , 742 F.3d 1131 (9th Cir. 2014), the Court of Appeals for the Ninth Circuit explains as follows:
A federal habeas petitioner can overcome a procedural default, including a failure to comply with the statute of limitations, by demonstrating actual innocence of the crime underlying his conviction. [citing Schlup, 513 U.S. at 313-15, and Perkins , 133 S.Ct. at 1928]....
One way a petitioner can demonstrate actual innocence is to show in light of subsequent case law that he cannot, as a legal matter, have committed the alleged crime. In Bousley, petitioner Bousley had "ple[d] guilty to using' a firearm in violation of 18 U.S.C. § 924(c)(1)." 523 U.S. at 616... He later challenged his conviction on habeas for lack of a factual basis for his plea. Id. at 617... The district court rejected his claim and dismissed the petition. Id. Five years after his plea, while his appeal from the district court's denial of habeas relief was pending, the Supreme Court "held in Bailey v. United States, 516 U.S. 137, 144... (1995), that § 924(c)(1)'s use' prong requires the Government to show active employment of the firearm.'" [quoting Bousley, 523 U.S. at 616-17]. In light of Bailey, Bousley argued that his "plea was involuntary because he was misinformed about the elements of a § 924(c)(1) offense." Id. at 617-18... The Supreme Court... held... in light of Bailey that the district court should have ...