                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              AUG 18 2000
                            FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                       No. 99-5230
                                                       (D.C. No. 99-CV-731-E)
    CEDRIC SEBASTIAN STUBBS,                                 (N.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT               *




Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.




         Defendant appeals the district court’s dismissal of his motion to vacate, set

aside, or correct sentence, filed pursuant to 28 U.S.C. § 2255.   1
                                                                      The district court

determined that defendant’s motion was untimely because it was outside the

one-year statute of limitations contained in the Antiterrorism and Effective Death

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Penalty Act (AEDPA), 28 U.S.C. § 2255. Defendant does not dispute that his

judgment of conviction became final in March 1996. Therefore, the district court

reasoned, defendant had until April 23, 1997, to file his § 2255 motion, in

accordance with our decision in   United States v. Simmonds , 111 F.3d 737, 745-46

(10th Cir. 1997). Because defendant did not file his § 2255 motion until

August 31, 1999, the district court ruled that it was untimely and dismissed it.

Defendant now appeals, arguing that the district court should have tolled the

statute of limitations because he is actually innocent of the crime to which he pled

guilty. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.       2



      Defendant pled guilty in January 1994 to an indictment that charged him

with knowingly using and carrying a firearm during and in relation to a drug

trafficking offense, in violation of 18 U.S.C. § 924(c). Defendant did not take a

direct appeal. In August 1999, he filed the present § 2255 motion, claiming that

his plea was not knowing and voluntary because he was misinformed by the

district court as to the true nature of the crime charged. Specifically, defendant

contended that he was not informed that “use” of a firearm under § 924(c)

requires active employment of the firearm, as the Supreme Court held in       Bailey v.

United States , 516 U.S. 137, 144 (1995).


2
       We previously granted defendant a certificate of appealability on his claim
that the statute of limitations should be tolled because of his alleged actual
innocence.

                                           -2-
       The government moved to dismiss defendant’s § 2255 motion on the

ground that it was untimely. In response, defendant argued that he was actually

innocent of the firearm charge to which he pled guilty and, therefore, that the

statute of limitations should not be applied to bar his claim. Defendant’s claim of

actual innocence was based on his contention that because he did not actively

employ the firearm, he could not be convicted under § 924(c).

       On appeal, defendant again asserts that his claim of actual innocence

should toll the statute of limitations. He relies on our opinion in     Miller v. Marr ,

141 F.3d 976, 978 (10th Cir. 1998), in which we intimated that the actual

innocence of a defendant may be grounds for tolling AEDPA’s similar one-year

statute of limitations for state prisoners.    See 28 U.S.C. § 2244(d)(1). We also

said, however, that while “[t]he one-year time period begins to run in accordance

with individual circumstances that could reasonably affect the availability of the

remedy, [it] requires inmates to diligently pursue claims.”       Miller , 141 F.3d at 978

(citations omitted). Defendant’s underlying challenge to his conviction is based

on the Supreme Court’s opinion in        Bailey , which was issued in December 1995.

Defendant had more than a year after the       Bailey decision to bring his current

claim before the statute of limitations ran in April 1997. Defendant, however, did

not file his current claim until August 1999. Thus, defendant has not diligently

pursued his Bailey claim, and he has provided no explanation for his failure to do


                                              -3-
so. On this basis alone, the district court would have been well within its

discretion to dismiss defendant’s § 2255 motion as untimely.

      Moreover, even if the actual innocence of a defendant provided a basis for

tolling the statute of limitations, a matter which we need not decide, no such

tolling is warranted here, because defendant has not presented a valid claim of

actual innocence. The Supreme Court has held that a defendant in a collateral

proceeding who wishes to establish his actual innocence to avoid a procedural bar

to consideration of the merits of his underlying claim must “demonstrate that, in

light of all the evidence, it is more likely than not that no reasonable juror would

have convicted him.”    Bousley v. United States , 523 U.S. 614, 623 (1998)

(quotations omitted);   see also Schlup v. Delo , 513 U.S. 298, 327-28 (1995). At

least one other circuit has applied this same standard in judging a claim of actual

innocence for purposes of tolling AEDPA’s one-year statute of limitations.     See

Lucidore v. New York State Div. of Parole    , 209 F.3d 107, 114 (2d Cir. 2000),

petition for cert. filed , 69 U.S.L.W. 3086 (U.S. July 5, 2000) (No. 00-40).

      Because defendant was charged with both using and carrying a firearm

during and in relation to a drug trafficking offense, he must establish his factual

innocence of both forms of conduct. Although defendant has argued that there is

no evidence that he actively employed the gun so as to support a charge of use, he

has not shown that there was no evidence that he carried the gun during and in


                                            -4-
relation to a drug trafficking offense. To the contrary, he testified at the change

of plea hearing that after he was contacted by a potential purchaser, he first went

and got the gun in question and then got the drugs and took them with him to

meet the purchaser. Defendant testified that he was arrested after delivering the

drugs, while still in possession of the gun. Because defendant has made no

showing that he is factually innocent of both using and carrying a firearm during

and in relation to a drug trafficking offense, there is no basis for tolling the

statute of limitations here. Therefore, we need not decide “whether the

Constitution requires an ‘actual innocence’ exception to AEDPA’s statute of

limitations.”   Id. at 114.

       We conclude the district court properly dismissed defendant’s § 2255

motion as untimely, and we AFFIRM the judgment of the district court. The

government’s motion to supplement the record is GRANTED.



                                                      Entered for the Court



                                                      Monroe G. McKay
                                                      Circuit Judge




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