                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           January 19, 2006
                             FOR THE TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                            Clerk of Court


    UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

     v.                                                    No. 05-3071
                                                 (D.C. Nos. 04-CV-3389-JTM and
    UNDRA D. LEE,                                      93-CR-10043-JTM)
                                                             (D. Kan.)
              Defendant-Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and McCONNELL, Circuit Judges.



          Undra D. Lee appeals the district court’s denial of his pro se motion to

vacate, set aside, or correct sentence, filed pursuant to 28 U.S.C. § 2255. The

district court determined that Mr. Lee’s motion was untimely because it was filed

outside the one-year period of limitation contained in the Antiterrorism and


*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2255(1)-(4). Mr. Lee

does not dispute that his judgment of conviction became final in 1993. Because

his conviction became final before the effective date of AEDPA, Mr. Lee had

until April 24, 1997, to file for § 2255 relief. See Serrano v. Williams, 383 F.3d

1181, 1183 (10th Cir. 2004) (noting, in similar context of remedies available to

state prisoners, 28 U.S.C. § 2254, that the end of AEDPA’s statutory grace period

was April 24, 1997). Indeed, the district court was even more charitable, holding

that under § 2255(3) Mr. Lee arguably had until May 18, 1999, to file for § 2255

relief, which date was one year from the date that Bousley v. United States,

523 U.S. 614, 621 (1998), made Bailey v. United States, 516 U.S. 137, 150

(1995), retroactively applicable to cases on collateral appeal. 1 Thus, since

Mr. Lee did not file his § 2255 motion until October 14, 2004, “nearly eleven

years after the date of his conviction, eight years after Bailey, and some six years

after the decision in Bousley,” R., Doc. 39 at 2, the district court held the motion

untimely and denied relief. We previously granted Mr. Lee a certificate of

appealability. See 28 U.S.C. § 2253(c). Exercising jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a), we affirm.


1
       But see Dodd v. United States , __ U.S. __, 125 S.Ct. 2478, 2482 (2005)
(holding that the date from which the limitation period begins to run under
§ 2255(3) is the date that the Court initially recognizes the right asserted in an
applicant’s § 2255 motion, not the date on which the right is made retroactively
applicable).

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      On October 29, 1993, following the entry of a guilty plea, Mr. Lee was

sentenced to five years’ imprisonment and three years’ supervised release for

using and carrying a firearm during and in relation to a drug trafficking crime,

18 U.S.C. § 924(c)(1). Mr. Lee did not take a direct appeal. In October 2004, he

filed the present § 2255 motion, asserting that his conviction should be vacated

because the Government did not demonstrate that he actively employed the

firearm at issue, as is required to sustain a conviction under § 924(c)(1). Bailey,

516 U.S. at 150. Instead, argued Mr. Lee, “the admitted facts indicate that the

gun merely lay inert under the bed mattress,” R., Doc. 38 at 8. Construing

Mr. Lee’s § 2255 motion liberally, see Cummings v. Evans, 161 F.3d 610, 613

(10th Cir. 1998), the motion also alluded to actual innocence. See Miller v. Marr,

141 F.3d 976, 978 (10th Cir. 1998) (suggesting that actual innocence of a

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

limitations for state prisoners, 28 U.S.C. § 2244(d)(1)).

      The district court found Mr. Lee’s § 2255 motion untimely under AEDPA’s

one-year period of limitation and denied relief without reaching the merits of his

claims. Mr. Lee filed a motion for reconsideration, contending that his plea was

not knowing and voluntary because he was misinformed by the district court as to

the essential elements of the crime charged. The district court denied Mr. Lee’s

motion for reconsideration.


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      This court issued a certificate of appealibility to consider whether the

district court erred in denying Mr. Lee’s § 2255 motion on timeliness grounds

without examining whether he was entitled to equitable tolling pursuant to his

claims of actual innocence. 2 Because this issue requires us to address a question

of law, our review of the district court’s denial of § 2255 relief is de novo. See

Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000). “AEDPA’s one-year

statute of limitations is subject to equitable tolling but only ‘in rare and

exceptional circumstances.’” Id. at 808 (quoting Davis v. Johnson, 158 F.3d 806,

811 (5th Cir. 1998)). Actual innocence, for example, constitutes a rare and

exceptional circumstance. See id. Notwithstanding, equitable tolling “is only

available when an inmate diligently pursues his claims and demonstrates that the

failure to timely file was caused by extraordinary circumstances beyond his

control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (emphasis

added).

      Mr. Lee’s underlying challenge to his conviction is based on the Supreme

Court’s opinion in Bailey, which was issued on December 6, 1995. Mr. Lee,



2
       Having reviewed Mr. Lee’s timely submission in response to our show
cause order, we conclude that when he filed the § 2255 motion he was in custody
under the conviction and sentence challenged in the motion.    See United States v.
Hernandez , 94 F.3d 606, 613 (10th Cir. 1996) (observing that § 2255 relief is
available only to one who, when he files his § 2255 motion, is in custody under
the conviction and sentence he seeks to vacate, set aside, or correct).

                                          -4-
however, did not file his § 2255 motion until October 14, 2004. Thus, Mr. Lee

has not diligently pursued his Bailey claim, and he has provided no explanation

for his failure to do so. Further, in demonstrating that his failure to comply with

AEDPA’s one-year statute of limitations was caused by extraordinary

circumstances beyond his control, Mr. Lee must not only prove actual innocence

as to the gun charge to which he pleaded guilty, he must also prove actual

innocence of the three drug counts for which he was indicted. See Bousley,

523 U.S. at 624 (“In cases where the Government has forgone more serious

charges in the course of plea bargaining, petitioner’s showing of actual innocence

must also extend to those charges.”). Mr. Lee makes no such showing.

      We conclude that the district court properly denied Mr. Lee’s § 2255

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

Mr. Lee’s motion for appointment of counsel is DENIED.

                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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