                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-7675


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TORRANCE JONES, a/k/a Tube,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:96-cr-00079-BO-1; 5:12-cv-00121-BO)


Argued:   March 18, 2014                    Decided:   July 14, 2014


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by published opinion.    Judge Niemeyer wrote the
opinion, in which Judge Agee joined.    Judge King wrote a
separate opinion dissenting in part and concurring in the
judgment in part.


ARGUED:    Coreen Mao, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant.     Shailika K. Shah,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Stephen L. Braga, Kevin Cope, Benjamin
Hayes, Third Year Law Student, Caroline Schmidt, Third Year Law
Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Thomas
G. Walker, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.




                              2
NIEMEYER, Circuit Judge:

       Torrance Jones was convicted in 1996 on federal cocaine

trafficking charges and sentenced to 360 months’ imprisonment.

His    sentence   was    enhanced      by,       among    other    things,      two     prior

Florida state court convictions.                   Following his sentencing and

appeal, Jones filed a motion under 28 U.S.C. § 2255 in October

2000     for   post-conviction         relief,       which       the    district        court

denied.    We dismissed Jones’s subsequent appeal.

       Thereafter,      Jones        challenged          his     two      Florida       state

convictions and obtained vacaturs of both, one in 2004 and the

other in 2008.        He then filed two motions in federal court under

28 U.S.C. § 2241 and Federal Rule of Civil Procedure 60(b)(5),

challenging the sentence imposed for his 1996 federal conviction

because his Florida state convictions had been vacated.                                   The

district court treated his motions as § 2255 motions and denied

them as successive.

       Finally,   in    March    2012,       Jones       filed    the   instant     §    2255

motion,    arguing      that    it    was    not     successive         because     he   had

obtained the vacaturs of the Florida convictions after he had

filed his first § 2255 motion.                     The district court, however,

denied    this    §    2255    motion       as    untimely        under    28   U.S.C.     §

2255(f)(4) because it was not filed within one year after Jones

learned of his Florida state vacaturs.



                                             3
      Jones now argues on appeal that his failure to meet the

requirements of § 2255(f)(4) should not bar his § 2255 motion

because     the    vacaturs     of   his     state    convictions         rendered       him

“actually innocent of his sentence.”                      In making this argument,

he relies on the recent Supreme Court decision in McQuiggin v.

Perkins,     133    S.    Ct.   1924,      1928    (2013),       which    held    that     a

defendant     who   demonstrates          actual   innocence       of    his     crime    of

conviction may, in extraordinary circumstances, proceed with a

habeas petition that otherwise would have been statutorily time-

barred under the Antiterrorism and Effective Death Penalty Act

of   1996    (“AEDPA”).         Jones      asks    that     we   extend    McQuiggin’s

holding to provide relief to defendants who demonstrate actual

innocence of their sentences, thus providing Jones an avenue to

bypass § 2255(f)(4)’s 1-year statute of limitations.                           We decline

to do so and affirm the judgment of the district court. 1


                                            I

      Jones’s 1996 conviction resulted from his involvement in a

substantial cocaine distribution conspiracy.                       He was convicted

in   the    Eastern      District    of    North     Carolina      on    one    count     of

conspiracy     to   possess     with      intent     to    distribute      cocaine       and


      1
       Because we hold that Jones’s § 2255 motion is time-barred
by § 2255(f)(4), we do not reach the question raised by the
government of whether it was successive and therefore also
barred under 28 U.S.C. § 2255(h).


                                            4
cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1),

and two counts of possession with intent to distribute cocaine,

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.                                 During

sentencing, the district court found that Jones maintained a

managerial    role         in     the     offenses       and     was      accountable         for

trafficking in 79 kilograms of cocaine and 26.3 kilograms of

cocaine base, which, under the Sentencing Guidelines, resulted

in   an   offense     level       of    40.        The     court       found    that   Jones’s

criminal record established a criminal history category of III,

based on a juvenile adjudication and two Florida state court

convictions     --    one        in     1990     for     misdemeanor           possession      of

marijuana    and     one    in     1994    for     carrying        a   concealed       firearm,

loitering or prowling, and possession of burglary tools.                                      The

offense    level     and        criminal      history      category       resulted       in   an

advisory    Guidelines          sentencing         range    of     360    months’      to   life

imprisonment.          The        court     sentenced          Jones      to    360     months’

imprisonment.        On direct appeal, we affirmed.                       United States v.

Jones, No. 97-4107, 1998 WL 761542 (4th Cir. Nov. 2, 1998) (per

curiam), cert. denied, 528 U.S. 853 (1999).

      Jones filed a § 2255 motion for post-conviction relief in

October 2000, alleging eight grounds for relief, primarily based

on ineffective assistance of counsel.                       The district court denied

Jones’s motion, and we dismissed his subsequent appeal.                                 United



                                               5
States v. Jones, 35 F. App’x 382, 383 (4th Cir. 2002) (per

curiam).

     Following        Jones’s     unsuccessful         §     2255    motion,       he

successfully obtained orders from Florida state courts vacating

his two prior convictions.               The 1990 marijuana conviction was

vacated on February 18, 2004, and the 1994 firearm conviction

was vacated on November 7, 2008.

     Jones thereafter filed two pro se motions to obtain relief

from his 1996 federal drug trafficking sentence based on the

vacaturs of his two Florida convictions.                   On November 6, 2009,

he filed a motion under 28 U.S.C. § 2241, and on November 17,

2009, he filed a motion under Federal Rule of Civil Procedure

60(b)(5).     The district court treated both as motions under §

2255 and dismissed them as successive.                     We thereafter denied

Jones’s    requests    for   a    certificate     of   appealability        and   for

authorization to file a successive § 2255 motion.                   United States

v. Jones, 403 F. App’x 856, 857 (4th Cir. 2010) (per curiam).

     Finally,    in    March     2012,    Jones   filed     the   instant    §    2255

motion, again contending that he should be resentenced in light

of the vacaturs of his two prior Florida state convictions.                         He

argued that this motion should not be dismissed as successive

because his prior state convictions were vacated after he had

filed his original § 2255 motion in October 2000.                   Therefore, he



                                          6
argued, his October 2000 motion could not have raised the issue

of the effect of his vacaturs.

        The district court did not rule on whether Jones’s § 2255

motion was successive but, instead, dismissed it as untimely

under    28   U.S.C.      §    2255(f)(4),         which       provides    for    a    1-year

limitation period, running from “the date on which the facts

supporting       the   claim        or   claims      could      have     been    discovered

through the exercise of due diligence.”                         The court pointed out

that the facts giving rise to Jones’s § 2255 motion first became

known to him no later than when he received notice of the latter

of the two vacaturs on November 7, 2008.                              Consequently, his §

2255    motion    filed       in    March   2012         was   untimely.         Finding    no

extraordinary circumstances that would justify equitable tolling

or that would allow Jones to benefit from the filing date of his

timely but previously dismissed § 2241 motion (filed on November

6,   2009),   the      court       dismissed       the    §    2255    motion.        It   did,

however, grant Jones a certificate of appealability on the issue

of whether his instant motion was timely filed.

        Jones filed this appeal and now argues that McQuiggin v.

Perkins, which was decided after the district court’s order,

should provide him with relief from the 1-year limitation period

in § 2255(f)(4), as he is actually innocent of his sentence.




                                               7
                                         II

       As noted, the two Florida state convictions that were used,

in part, to enhance Jones’s 1996 federal sentence were vacated

in 2004 and 2008, respectively.                  Thus, his § 2255 motion based

on those vacaturs and filed in 2012 was not filed within one

year of when he learned of the vacaturs, and therefore it failed

to comply with § 2255(f)(4). 2          As the Supreme Court has noted, in

the context of a § 2255 challenge made “on the ground that a

state conviction used to enhance [a federal] sentence has since

been       vacated,”   the   1-year    limitation         period      “begins    when   a

petitioner       receives    notice    of       the    order    vacating       the   prior

conviction, provided that he sought it with due diligence in

state      court.”     Johnson    v.   United         States,   544     U.S.    295,   298

(2005); see also United States v. Gadsen, 332 F.3d 224, 227-29

(4th Cir. 2003).

       Jones contends that because “he is innocent of his current

federal       sentence,”     we    should         exercise       “the     traditional,

equitable power of federal courts” and grant him relief from the

bar of § 2255(f)(4).           He relies on the Supreme Court’s recent

       2
       Section 2255 authorizes the court that imposed a federal
sentence “to vacate, set aside or correct the sentence,” 28
U.S.C. § 2255(a), and § 2255(f) imposes a “1-year period of
limitation” for filing the motion, which “shall run from the
latest of [several stated dates, one of which is] the date on
which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence,” id.
§ 2255(f)(4).


                                            8
decision     in    McQuiggin,        which        held    that,    in    extraordinary

circumstances, a defendant who demonstrates actual innocence of

his crime of conviction may proceed with a habeas petition that

otherwise would have been statutorily time-barred under AEDPA.

Thus, he asks us to apply a rule providing for relief based on

actual innocence of a crime of conviction to a situation where

he is actually innocent of a federal sentence.                           His claim for

relief is grounded on the fact that his sentencing range --

without      the     enhancements         caused          by      the    two     Florida

convictions -- would have been 292 to 365 months’ imprisonment,

whereas the range that the district used in sentencing him was

360 months’ to life imprisonment.

     In    response,     the        government       argues       that   McQuiggin      is

inapposite because Jones “has not even attempted to claim that

he is actually innocent of the [federal] charge for which he was

convicted.         Rather,     he     attempts       to    use     the   term    ‘actual

innocence’    to    assert   that      his       criminal      history   category      was

improperly calculated.”

     It is true that the Supreme Court has recognized a limited

“actual    innocence”    exception           to    certain       procedural     bars   to

habeas review.       Under the exception, “in an extraordinary case,

where a constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal habeas

court may grant the writ [of habeas corpus] even in the absence

                                             9
of a showing of cause for the procedural default.”                              Murray v.

Carrier, 477 U.S. 478, 496 (1986) (emphasis added); see also

McQuiggin,         133    S.   Ct.   at   1931     (“In    other   words,   a    credible

showing of actual innocence may allow a prisoner to pursue his

constitutional claims . . . on the merits notwithstanding the

existence of a procedural bar to relief”); Bousley v. United

States, 523 U.S. 614, 623 (1998).                        “This rule, or fundamental

miscarriage of justice exception, is grounded in the ‘equitable

discretion’ of habeas courts to see that federal constitutional

errors do not result in the incarceration of innocent persons.”

Herrera v. Collins, 506 U.S. 390, 404 (1993).                           It “seeks to

balance       the        societal    interests       in     finality,      comity,     and

conservation of scarce judicial resources with the individual

interest      in    justice      that     arises    in    the   extraordinary      case.”

Schlup v. Delo, 513 U.S. 298, 324 (1995).                          But the Court has

been       clear    that       “habeas    corpus      petitions     that     advance     a

substantial claim of actual innocence are extremely rare” and

the exception only applies in limited circumstances:                               “[T]he

petitioner must show that it is more likely than not that no

reasonable juror would have convicted him in the light of the

new evidence.”             Id. at 327; see also House v. Bell, 547 U.S.

518, 537 (2006). 3


       3
           In addition to cases where the petitioner alleges actual


                                             10
      Until   2013,     the   Court    had    applied   the   actual    innocence

exception only to circumvent judge-made procedural barriers to

relief,   such    as    procedural     default;    it   had   never    spoken   on

whether   actual       innocence      could   provide    an   exception    to    a

statutory bar, such as the § 2255(f)(4) time limit.                       But in

McQuiggin, the Court did so for the first time, allowing an

actual innocence claim to proceed in the face of the statutory

time bar in 28 U.S.C. § 2244(d)(1)(D).               In that case, McQuiggin

had been convicted of murder in state court, based primarily on

the   testimony    of    three     witnesses,     including   one     eyewitness.

McQuiggin, 133 S. Ct. at 1929.                 Later, however, he obtained

affidavits from three other witnesses, whose testimony strongly

implied his innocence.           Id. at 1929-30.         McQuiggin eventually



innocence of his crime of conviction, the Supreme Court has held
that the exception can apply to cases in which the petitioner
alleges actual innocence of a death penalty sentence. Though it
has noted that the concept of actual innocence “does not
translate easily into the context of an alleged error at the
sentencing phase of a trial on a capital offense,” Smith v.
Murray, 477 U.S. 527, 537 (1986), the Supreme Court has
nevertheless held that where the petitioner can show “by clear
and convincing evidence that but for constitutional error, no
reasonable juror would find him eligible for the death penalty,”
he may be permitted to file a habeas claim that would otherwise
be procedurally defaulted, Sawyer v. Whitley, 505 U.S. 333, 348,
(1992).    Cf. Dretke v. Haley, 541 U.S. 386, 388-89 (2004)
(declining to decide “whether [the actual innocence] exception
applies where an applicant asserts ‘actual innocence’ of a
noncapital sentence”); Dugger v. Adams, 489 U.S. 401, 410 n.6
(1989) (recognizing the Court’s actual innocence of capital
sentence holding in Smith, but declining “to define what it
means to be ‘actually innocent’ of a death sentence”).


                                         11
filed a § 2254 habeas petition alleging ineffective assistance

of counsel, but not until nearly six years after he obtained the

last of the affidavits, rendering his petition untimely under

the 1-year time limit provided in § 2244(d)(1)(D).                  Id. at 1930.

Despite the statutory bar, the Supreme Court extended the actual

innocence      exception    it   had    previously       applied   in   Schlup --

namely, that “a convincing showing of actual innocence enable[s]

habeas petitioners to overcome a procedural bar to consideration

of the merits of their constitutional claims.”                  Id. at 1928.     In

applying    the    exception     to    the    statutory    context,     the   court

emphasized      the    importance      of     avoiding    unjust    convictions,

reasoning that “[s]ensitivity to the injustice of incarcerating

an innocent individual should not abate when the impediment is

AEDPA’s statute of limitations.”              Id. at 1932.

       Jones now asks us to extend the reasoning of McQuiggin, in

which the petitioner claimed actual innocence of his crime of

conviction, to his case, in which he asserts actual innocence of

his sentence.      For several reasons, we decline to do so.

       First, the McQuiggin Court made no explicit indication that

its holding was intended to be applied to the actual innocence

of sentence context, and its language and reasoning belie such a

conclusion.       The Court only discussed the miscarriage of justice

exception in the context of actual innocence of conviction, and

even   then,      it   explicitly     noted     the   limited    nature   of    the

                                         12
exception.          It said, “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].’”

McQuiggin, 133 S. Ct. at 1933 (alteration in original) (emphasis

added) (quoting Schlup, 513 U.S. at 329).                               And such limiting

language       in    McQuiggin       was    not      isolated.            Indeed,    it    was

pervasive throughout the opinion.                      See, e.g., id. at 1936 (“We

stress once again that the Schlup standard is demanding.                                   The

gateway should open only when a petition presents evidence of

innocence so strong that a court cannot have confidence in the

outcome of the trial” (quoting Schlup 513 U.S. at 316) (internal

quotation marks omitted)).

       In addition, the McQuiggin standard, which was derived from

the Schlup concern about incarcerating the innocent, cannot, as

a   substantive         matter,      be    easily       applied         to   a    sentencing

decision.       Innocence of conviction implicates the notion that a

person has been incarcerated for a crime he did not commit,

whereas    a    sentencing        error    does      not     at   all    implicate    guilt.

See,   e.g.,        McQuiggin,     133     S.    Ct.    at    1935      (noting     that   its

exception to the statutory time bar was based on a petitioner’s

showing “that it is more likely than not that no reasonable

juror would have convicted him in the light of the new evidence”

(quoting       Schlup,      513   U.S.     at    327)      (internal      quotation       marks

                                                13
omitted);     id.        at    1935    n.3   (defending      the        actual    innocence

exception “when what is at stake is a State’s incarceration of

an individual for a crime, it has become clear, no reasonable

person     would    find       he   committed”);      id.    at    1928     (articulating

similar standard).

      Despite      the        restrictive     scope   of     the    McQuiggin       Court’s

holding,     Jones        nonetheless        claims   that    McQuiggin          “draws      no

distinction between actual innocence of conviction and actual

innocence of sentence claims.”                 He argues that because McQuiggin

is based on the same “miscarriage of justice” framework applied

in   the   actual        innocence      of   death    penalty      cases,        see,   e.g.,

Sawyer v. Whitley, 505 U.S. 333, 348 (1992), the application of

McQuiggin     to    the       actual    innocence     of    sentence       context      is   a

“natural outgrowth.”                This argument, however, applies the term

“miscarriage        of     justice”     to    practically         any    error,     without

recognizing that various circumstances present varying degrees

of injustice.

      In Schlup, the very case that McQuiggin extended to provide

relief from a statutory limitation period, the Court outlined

the stark differences between claims involving actual innocence

of a crime of conviction and claims involving actual innocence

of a capital sentence.                  It noted that a petitioner claiming

actual innocence of his crime of conviction need only show that

it is more likely than not that no reasonable juror would have

                                              14
found   him    guilty     beyond     a   reasonable    doubt   in    light       of   new

evidence      (the   standard       from   Carrier),      whereas    a    petitioner

claiming actual innocence of his capital sentence must show by

clear and convincing evidence that, but for a constitutional

error, no reasonable juror would have found him eligible for the

death   penalty      (the    standard      from   Sawyer).     The       Court    fully

explained the distinction between the two types of claims:

     Claims of actual innocence pose less of a threat to
     scarce   judicial   resources   and   to    principles   of
     finality and comity than do claims that focus solely
     on the erroneous imposition of the death penalty.
     Though challenges to the propriety of imposing a
     sentence of death are routinely asserted in capital
     cases, experience has taught us that a substantial
     claim   that   constitutional   error    has   caused   the
     conviction of an innocent person is extremely rare.
     To be credible, such a claim requires petitioner to
     support his allegations of constitutional error with
     new reliable evidence -- whether it be exculpatory
     scientific evidence, trustworthy eyewitness accounts,
     or critical physical evidence -- that was not
     presented at trial.         Because such evidence is
     obviously unavailable in the vast majority of cases,
     claims     of     actual     innocence       are     rarely
     successful. . . .

     Of greater importance, the individual interest in
     avoiding injustice is most compelling in the context
     of actual innocence.    The quintessential miscarriage
     of justice is the execution of a person who is
     entirely   innocent.     Indeed,  concern  about   the
     injustice that results from the conviction of an
     innocent person has long been at the core of our
     criminal justice system. . . .

Schlup,    513    U.S.      at    324-27   (emphasis      added)    (footnote         and

citation      omitted).          Thus,   Schlup   makes    clear    that     not      all

miscarriage of justice claims are equivalent.                      And Schlup only

                                           15
compared actual innocence of the crime of conviction with actual

innocence       of   a     death       penalty         sentence         --   a     substantial         step

removed from the noncapital sentencing context to which Jones

now asks us to apply the McQuiggin extension of the exception.

     Because         the       “miscarriage            of    justice”             in    this    case    is

significantly different from that of McQuiggin, we do not find

Jones’s    abstract            reference         to    that       term       to    be    a     basis    for

extending the reasoning of McQuiggin to this case.                                             This case

involves,       more       modestly,             the       elimination            of    a    sentencing

enhancement to reduce a sentencing range from 360 months to life

imprisonment         to    a       range    of    292       to    365    months’        imprisonment.

Moreover, we note that Jones’s actual sentence of 360 months’

imprisonment in this case fell within both ranges.

     At bottom, we conclude that McQuiggin does not extend to

cases     in    which          a     movant      asserts          actual         innocence       of    his

sentence, rather than of his crime of conviction.                                            Indeed, we

have found no case that has granted a movant relief on such a

basis.     See, e.g., Sims v. United States, No. 1:04-CR-0048-ODE-

JFK-1, 2014 WL 229335, at *2 (N.D. Ga. Jan. 21, 2014) (declining

to extend McQuiggin to an actual innocence of sentence claim);

Hall v. United States, No. 4:12-02462-TLW, 2014 WL 130446, at *5

(D.S.C. Jan. 14, 2014) (“Petitioner does not claim that he is

actually       innocent         of    the     charge        for    which      he       was   convicted.

Rather, Petitioner claims actual innocence of his sentence as a

                                                      16
career offender.         Therefore, because Petitioner is not asserting

actual     innocence     as    to     his    crime      of     conviction,       McQuiggin

provides    no    relief”);     Ellerman          v.   Walton,       No.   13-cv-063-CJP,

2014 WL 103831, at *3 (S.D. Ill. Jan. 10, 2014) (“McQuiggin

discussed only a claim of actual innocence of the conviction”

and thus “does not apply here”); Kizziah v. United States, No.

7:13-cv-8042-VEH-JEO, 2014 WL 51282, at *6-7 (N.D. Ala. Jan. 7,

2014)    (holding    that     petitioner          failed      to   demonstrate     factual

innocence and noting that “[t]hus far, the Supreme Court and the

Eleventh     Circuit     have       recognized         that    the    actual     innocence

doctrine    applies      in   only    two    contexts:             where   the   defendant

claims that he is actually innocent of the crime of conviction

and where a defendant claims that he is actually innocent of a

capital sentence”); Monroe v. United States, No. 3:13-CV-2546-

G(BK), 2013 WL 6199955, at *4 (N.D. Tex. Nov. 26, 2013) (noting

that     “the    Supreme      Court    has        applied      the    actual     innocence

exception only when the petitioner is actually innocent of the

crime of conviction or of the capital sentence”); United States

v. Robinson, No. 10-40037, 2013 WL 5874012, at *3 (D. Kan. Oct.

30, 2013) (“Since the defendant is not asserting his innocence

on   his   crime    of   conviction,         McQuiggin        provides      no   relief”);

Clayton v. United States, No. 1:12-cv-109-MR, 2013 WL 3381373,

at *3 (W.D.N.C. July 8, 2013) (“Petitioner admitted his guilt.

He merely claims that his sentence was calculated incorrectly.

                                             17
McQuiggin has no applicability to this situation”).                                   But see

Hallman v. United States, No. 3:05-376, 2013 WL 4647536 (D.S.C.

Aug. 29, 2013) (applying McQuiggin to the sentencing context in

dictum).

       We have found no case decided by the Supreme Court or a

court of appeals to provide Jones with the relief he requests

from   a   statutory          limitation     period.           Jones    does   discuss       at

length three Fourth Circuit cases addressing an actual innocence

of sentence exception.               But, in each case, the exception was

raised     not   in     the     context    of     a    statute    of    limitations,      but

rather in the context of a judge-made procedural default rule.

See United States v. Pettiford, 612 F.3d 270 (4th Cir. 2010);

United     States     v.    Mikalajunas,         186    F.3d     490    (4th   Cir.    1999);

United States v. Maybeck, 23 F.3d 888, 890-94 (4th Cir. 1994).

Therefore,       none      of    those    cases       can   provide     support    for    the

notion that Jones can avoid, through the equitable power of a

court,     the   1-year         limitation      period      fixed      by   Congress    in   §

2255(f)(4).       His only potential route for such an argument would

have to be through McQuiggin, and McQuiggin does not apply to

habeas claims based on actual innocence of a sentence.

       The judgment of the district court is

                                                                                  AFFIRMED.




                                                18
KING, Circuit Judge, dissenting in part and concurring in the
judgment in part:

      Jones       asks     us    to   rule      today     that    an    AEDPA     statute    of

limitations may be overcome by a showing of actual innocence of

a non-capital sentence.               To so hold, Jones would have us rely on

the Supreme Court’s recent decision in McQuiggin v. Perkins, 133

S. Ct. 1924, 1928 (2013) (recognizing that actual innocence of a

crime    of       conviction      “serves       as    a    gateway      through     which    a

petitioner may pass whether the impediment is a procedural bar

. . . or . . . expiration of the statute of limitations”), as

well as our own line of cases beginning with United States v.

Maybeck, 23 F.3d 888, 891-94 (4th Cir. 1994) (applying an actual

innocence      of    non-capital           sentence       exception      to   a   procedural

bar).     Under Jones’s interpretation of that precedent, Maybeck’s

actual innocence of non-capital sentence exception operates, in

the   wake    of     McQuiggin,       to     surmount      both    procedural       bars    and

AEDPA’s time limitations.

      The panel majority declares, however, “that McQuiggin does

not extend to cases in which a movant asserts actual innocence

of his sentence, rather than of his crime of conviction.”                                  Ante

at 15.        Concomitantly, the majority restricts Maybeck and its

progeny      to     “the    context        of   a    judge-made        procedural    default

rule.”        Id.    at    17.        In    other     words,      the    majority    broadly

concludes that no petitioner can ever overcome an AEDPA statute


                                                19
of limitations by showing actual innocence of any non-capital —

or even capital — sentence.

     Because the panel majority’s sweeping decision is not only

highly debatable, but also unnecessary to disposing of Jones’s

appeal,   I   dissent.         Nevertheless,     I     concur    in       the    judgment

insofar as it affirms the district court.                   In getting to that

result, I would assume that Maybeck’s actual innocence of non-

capital     sentence    exception      may     function    under          McQuiggin      to

overcome an AEDPA statute of limitations, but conclude that such

exception cannot help Jones because he was not sentenced as a

habitual offender.            See United States v. Pettiford, 612 F.3d

270, 284 (4th Cir. 2010) (explaining that the Maybeck exception

applies only “in the context of habitual offender provisions”

and only then “where the challenge to eligibility stems from

factual   innocence      of    the   predicate    crimes,       and   not       from    the

legal classification of the predicate crimes”).

     That     is,   I   would    leave   for    another    day        —    and    a    more

appropriate     case     —     the   question     of     whether          AEDPA’s      time

limitations     foreclose        a   late-filed        claim     alleging           actual

innocence of a non-capital (or capital) sentence. *                        I therefore

dissent in part and concur in the judgment in part.


     *
       Notably, in many of the district court decisions cited
favorably by the panel majority, see ante at 15-17, the courts
did exactly what I propose we do today: They exercised judicial


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restraint and refrained from unnecessarily deciding whether a
showing of actual innocence of sentence may be sufficient to
overcome an AEDPA statute of limitations.     See Sims v. United
States, No. 1:04-cr-0048, 2014 WL 229335, at *2 (N.D. Ga. Jan.
21,  2014)   (acknowledging  possible   existence  of  exception
premised on actual innocence of non-capital sentence, but
concluding that movant did not make requisite showing of
factual, rather than mere legal, innocence); Kizziah v. United
States, No. 7:13-cv-8042, 2014 WL 51282, at *6-7 (N.D. Ala. Jan.
7, 2014) (same); Monroe v. United States, No. 3:13-cv-2546, 2013
WL 6199955, at *4 (N.D. Tex. Nov. 26, 2013) (same); United
States v. Robinson, No. 10-40037, 2013 WL 5874012, at *3 (D.
Kan. Oct. 30, 2013) (same).


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