                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                       FOR THE TENTH CIRCUIT                   January 13, 2017
                       _________________________________
                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff-Appellee,
                                                    No. 16-8071
v.                                         (D.C. No. 2:16-CV-00038-NDF
                                           & No. 1:08-CR-00076-CAB-1)
PHILIP ANDRE NAZARETA,                               (D. Wyo.)

      Defendant-Appellant.

                       _________________________________

                                   ORDER
                       _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

     In 2009, Mr. Philip Andre Nazareta pleaded guilty to possessing

methamphetamine with intent to distribute and being a felon in possession

of a firearm. See 21 U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. §§ 922(g)(1),

924(e)(1). Because Mr. Nazareta had three prior convictions for serious

drug offenses, Mr. Nazareta was sentenced to the mandatory minimum

sentence of 180 months under the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e). In 2016, Mr. Nazareta challenged the sentence by

filing a motion under 28 U.S.C. § 2255.

     The district court denied the motion based on timeliness, and Mr.

Nazareta wants to appeal. To do so, he seeks a certificate of appealability
and leave to proceed in forma pauperis. See 28 U.S.C. §§ 2253(c)(1)(B)

(certificate of appealability), 1915(a)(1) (leave to proceed in forma

pauperis). But Mr. Nazareta’s motion was not filed until almost seven

years after his conviction became final. In light of this delay, we decline to

issue a certificate of appealability, dismiss the appeal, and deny leave to

proceed in forma pauperis.

      We can issue a certificate of appealability only if Mr. Nazareta’s

argument on timeliness is at least reasonably debatable. See Laurson v.

Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). In our view, jurists could not

reasonably debate the district court’s ruling on timeliness.

      The limitations period for a § 2255 motion is one year. 28 U.S.C.

§ 2255(f). Mr. Nazareta concedes that the limitations period would

ordinarily have begun to run in April 2009, when the judgment of

conviction became final. 28 U.S.C. § 2255(f)(1). Thus, Mr. Nazareta’s

motion would ordinarily be considered untimely.

      To avoid this result, Mr. Nazareta relies on an exception to the one-

year limitations period: actual innocence. See McQuiggin v. Perkins, __

U.S. __, 133 S. Ct. 1924, 1928 (2013). But Mr. Nazareta is not arguing that

he is actually innocent of a crime; he is arguing that his prior convictions

should not be counted under the ACCA. See In re Davenport, 147 F.3d

605, 609 (7th Cir. 1998) (“[T]he armed career criminal act is a sentence-

enhancement statute; [the defendant] is ‘innocent’ (if his claim has merit)

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only in a technical sense.”). This type of argument does not fit within the

exception for actual innocence. See Williams v. Warden, 713 F.3d 1332,

1345-46 (11th Cir. 2013) (holding that a challenge to the counting of prior

convictions under the ACCA does not constitute a claim of actual

innocence); United States v. Pettiford, 612 F.3d 270, 284 (4th Cir. 2010)

(holding that a claim challenging classification of a conviction under the

ACCA “is not cognizable as a claim of actual innocence”). Thus, Mr.

Nazareta is subject to the one-year period of limitations and his § 2255

motion was untimely.

      In these circumstances, jurists could not reasonably debate the

correctness of the district court’s ruling. Thus, we (1) decline to issue a

certificate of appealability and (2) dismiss the appeal. We also conclude

that Mr. Nazareta “has failed to show the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised

on appeal.” Rolland v. Primesource Staffing, LLC, 497 F.3d 1077, 1079

(10th Cir. 2007). In the absence of a nonfrivolous argument, we deny leave

to proceed in forma pauperis. See id.



                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge


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