                                    In the

       United States Court of Appeals
                     For the Seventh Circuit
                         ____________________
No. 16-2381
JASON M. LUND,
                                                      Petitioner-Appellant,
                                       v.

UNITED STATES OF AMERICA,
                                                      Respondent-Appellee.
                         ____________________

            Appeal from the United States District Court for the
                      Eastern District of Wisconsin.
               No. 16-CV-119 — J.P. Stadtmueller, Judge.
                         ____________________

   ARGUED OCTOBER 25, 2017— DECIDED JANUARY 17, 2019
                ____________________

    Before KANNE and SYKES, Circuit Judges, and DARROW, Dis-
trict Judge. ∗
   DARROW, District Judge. Petitioner Jason Lund appeals the
denial of his motion to vacate, set aside, or correct his sentence
brought pursuant to 28 U.S.C. § 2255. The district court con-
cluded that Lund’s motion was untimely under each of the


   ∗   Of the Central District of Illinois, sitting by designation.
2                                                   No. 16-2381

potential statutes of limitations and that Lund could not in-
voke the actual innocence exception to the statute of limita-
tions because his claim of actual innocence was based on a
case that interpreted the substantive law of his conviction:
Burrage v. United States, 571 U.S. 204 (2014). Lund challenges
only this conclusion, arguing that a claim of actual innocence
can be based on a change in the law. To resolve this case, how-
ever, we need not rule on this issue. Even assuming actual in-
nocence can be premised on a change in the law, Lund cannot
take advantage of the exception because he rests both his ac-
tual innocence claim and his claim for relief on Burrage. We
aﬃrm.
    I.    Background
    In 2008, Jason Lund and thirty others were charged via
federal indictment with conspiracy to distribute heroin in vi-
olation of 21 U.S.C. § 841(a)(1). The indictment alleged that
the conspiracy resulted in overdose deaths of ﬁve individuals,
including Andrew Goetzke and David Knuth, in violation of
21 U.S.C. § 841(b)(1)(A). Lund pleaded guilty to the single-
count indictment, but denied responsibility for the deaths of
Goetzke and Knuth, arguing that he had withdrawn from the
conspiracy prior to their deaths. The district court judge re-
jected that argument and sentenced him in accordance with
the twenty-year mandatory minimum—sometimes referred
to as the “death results” enhancement or penalty—under
§ 841(b)(1)(A). Lund appealed and his sentence was aﬃrmed.
United States v. Walker, 721 F.3d 828, 841 (7th Cir. 2013), judg-
ment vacated on other grounds, Lawler v. United States, 572 U.S.
1111 (2014) (mem.). He did not ﬁle a petition for a writ of cer-
tiorari, so his sentence became ﬁnal on October 1, 2013.
No. 16-2381                                                              3

    On February 1, 2016, Lund ﬁled a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255
based on two changes in the law occurring after his convic-
tion. See Burrage, 571 U.S. at 211; Alleyne v. United States, 570
U.S. 99, 102 (2013). In Burrage, 571 U.S. at 211, the Supreme
Court held that ﬁnding a defendant guilty of the “death re-
sults” penalty “requires proof ‘that the harm would not have
occurred in the absence of—that is, but for—the defendant’s
conduct.’” (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570
U.S. 338, 346–47 (2013)). This but-for causation rule applies
retroactively. Krieger v. United States, 842 F.3d 490, 499–500
(7th Cir. 2016). In essence, Lund argued that under Burrage,
he is actually innocent of the “death results” enhancement be-
cause the heroin he provided to Goetzke and Knuth was not
the but-for cause of their deaths. Dist. Ct. Order 7, Br. Appel-
lant App. 1–15. Alleyne, which concerns who must determine
a fact that increases the mandatory minimum, is not retroac-
tive, Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015),
so the district court denied any relief based on Alleyne, Dist.
Ct. Order 9. 1
    The government moved to dismiss the motion as un-
timely. The district court found that there was no statutory
basis to ﬁnd his petition timely—it was ﬁled more than a year
after his conviction became ﬁnal, 28 U.S.C. § 2255(f)(1); more
than a year after the Supreme Court decided Burrage, id.
§ 2255(f)(3); and more than a year after the evidence he pre-
sented could have been discovered, id. § 2255(f)(4). Dist. Ct.
Order 4–7. The district court held that Lund was not entitled


    1 Lund concedes on appeal that Alleyne is not retroactive, so it is “of
limited use now.” Br. Appellant 25.
4                                                            No. 16-2381

to equitable tolling. Id. at 12–13. 2 It also held that he was una-
ble to use the actual innocence gateway exception to the stat-
ute of limitations, which would allow the court to hear his
otherwise barred claims, because this Court had not deter-
mined “that an intervening change in law supports a claim of
actual innocence.” Id. at 10. The court did not reach the merits
of Lund’s claims, but it granted him a certiﬁcate of appeala-
bility. This appeal followed.
    II.     Discussion
   We review the district court’s legal conclusions de novo.
Coleman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014). Lund raises
one legal issue: whether an intervening change in law can
serve as the basis for an actual innocence claim.
    “[A]ctual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impedi-
ment is a procedural bar ... or ... expiration of the statute of
limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see
Schlup v. Delo, 513 U.S. 298, 317 (1995) (holding that a peti-
tioner who procedurally defaults his claims can overcome the
procedural bar if he successfully raises a claim of actual inno-
cence—that is, if he “raise[s] suﬃcient doubt about [his] guilt
to undermine conﬁdence in the result”). The actual innocence
gateway 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. Col-
lins, 506 U.S. 390, 404 (1993) (quoting McCleskey v. Zant, 499
U.S. 467, 502 (1991)). To establish actual innocence, “a peti-
tioner must show that it is more likely than not that no

    2 Lund does not challenge the district court’s ruling on equitable toll-
ing, so we do not address it.
No. 16-2381                                                     5

reasonable juror would have found petitioner guilty beyond
a reasonable doubt.” Schlup, 513 U.S. at 327.
    The actual innocence exception certainly applies where
the petitioner has new evidence, like DNA evidence. See
House v. Bell, 547 U.S. 518, 537 (2006). But this Court has never
explicitly held that it can be used in situations where a subse-
quent change to the scope of a law renders the conduct the
petitioner was convicted for no longer criminal. See Gladney v.
Pollard, 799 F.3d 889, 897 (7th Cir. 2015).
   We need not take a position on this issue, because even
assuming that actual innocence could be predicated on a case
substantively interpreting the law under which a petitioner
was convicted, it would not extend to this case.
    Lund is attempting to use Burrage as his claim for actual
innocence and his claim for relief on the merits. This is a prob-
lem for two reasons. First, it is “doubtful” that a petitioner’s
actual innocence claim and claim for relief on the merits can
be the same. See Perrone v. United States, 889 F.3d 898, 903 (7th
Cir. 2018). And second, even if it can, in this situation it would
completely undermine the statute of limitations for bringing
initial § 2255 motions within one year from the date a new
right is recognized by the Supreme Court.
    The actual innocence exception is merely a gateway
through which a court can consider a petitioner’s otherwise
barred claims on their merits. See Herrera, 506 U.S. at 404–05.
Framing the exception as a gateway presupposes that a peti-
tioner will have underlying claims separate from the claim
that he is actually innocent. “The Supreme Court has not rec-
ognized a petitioner’s right to habeas relief based on a stand-
alone claim of actual innocence.” Gladney, 799 F.3d at 895.
6                                                                No. 16-2381

Moreover, “[t]he point of the exception is to ensure that ‘fed-
eral constitutional errors do not result in the incarceration of
innocent persons.’” Perrone, 889 F.3d at 903 (quoting Herrera,
506 U.S. at 404). This suggests that the underlying claim must
be a constitutional claim, rather than a statutory claim like
Burrage.
    Lund argues that he does not need to bring a separate con-
stitutional claim because Burrage is itself cognizable in § 2255
proceedings. By contrast, he argues, a state prisoner would
need to bring an underlying constitutional claim because nei-
ther a claim of actual innocence based on new evidence nor a
claim based on a state law error would be cognizable in a §
2254 proceeding. We do not ﬁnd this persuasive. The Supreme
Court has never mentioned a diﬀerence in the purpose or ap-
plication of the actual innocence exception between § 2254
and § 2255 proceedings. Therefore, we concur that it is
“doubtful” that Lund’s Burrage claim could be both his argu-
ment for actual innocence and his claim for relief. See id. at
902–03 (holding that the parties’ assumption that a claim of
actual innocence based on Burrage could do “double duty”
was “doubtful”).
    Lund also argues that he has raised underlying constitu-
tional claims. We disagree. Lund claims that his pro se plead-
ings should have been construed to include an ineﬀective as-
sistance of counsel claim. In his reply brief below, he argued
that his “main cause for not putting forth [a] petition in light
of the Supreme Court’s decision in Alleyne [wa]s Ineﬀective
Assistance of Counsel.” Reply Br. Pet’r 2, ECF No. 8; 3 see id. at
3 (“With these facts in mind, if the court were to enforce

    3   This ECF number refers to the district court’s docket.
No. 16-2381                                                              7

procedural default/untimeliness, the result would be a funda-
mental miscarriage of justice.”). The district court held that
Lund “d[id] not assert an ineﬀective assistance of counsel
claim in his petition.” Dist. Ct. Order 3 n.3. It read Lund’s ar-
gument regarding his attorney’s eﬀectiveness to relate only to
his position that his claims should have been equitably tolled.
Id. Lund asserts that the district court should have construed
his reference to ineﬀective assistance of counsel as a request
to amend his § 2255 claim to include a separate ineﬀective as-
sistance of counsel claim, which then should have been
granted.
    The district court did not err. True, pro se pleadings must
be liberally construed, see McNeil v. United States, 508 U.S. 106,
113 (1993), but Lund never indicated—neither in the title of
his response, nor its substance—that he was seeking to add a
claim. Instead, it appears from his pro se ﬁlings that he was
seeking to use ineﬀective assistance of counsel as cause to ex-
cuse his procedural default and untimeliness. Therefore, the
district court need not have construed Lund’s response as a
request to amend. 4
   More to the point, allowing Burrage to serve as both
Lund’s basis for actual innocence and his claim for relief on
the merits directly contracts a Congressionally-imposed stat-
ute of limitations. McQuiggin, 569 U.S. at 386, involved the
time limit in 28 U.S.C. § 2244(d)(1)(D), which starts the clock

    4 Lund also argues that his motion should have been construed to in-
clude a Due Process claim based on Burrage. We will not consider this
argument because it was raised for the first time in his reply brief, see
United States v. Wescott, 576 F.3d 347, 354 (7th Cir. 2009), and because it
was not raised below, see Freeland v. Enodis Corp., 540 F.3d 721, 731 (7th
Cir. 2008).
8                                                   No. 16-2381

for the one-year limitation on the date when the facts of the
claim could have been discovered. Lund’s Burrage claim, by
contrast, is barred by the statute of limitations which prohibits
petitioners from bringing habeas claims based on rights rec-
ognized by the Supreme Court, and made retroactively appli-
cable to cases on collateral review, more than one year after
the right was recognized by the Court. See 28 U.S.C.
§ 2255(f)(3).
    In McQuiggin, 569 U.S. at 397, the Supreme Court ex-
plained that, as there is “no clear command [in § 2244(d)(1)]
countering the courts’ equitable authority to invoke the mis-
carriage of justice exception,” it survived the enactment of the
Antiterrorism and Eﬀective Death Penalty Act of 1996
(“AEDPA”), at least as it relates to the statutes of limitations
contained within that section. The Court noted, however, that
other provisions of AEDPA did contain language modifying
the actual innocence exception. Compare Schlup, 513 U.S. at 327
(“[A] petitioner must show that it is more likely than not that
no reasonable juror would have found petitioner guilty be-
yond a reasonable doubt.”), with § 2244(b)(1)(B) (providing
that a claim presented in a successive habeas petition that was
not presented in a prior § 2254 petition will be dismissed un-
less the facts establish by clear and convincing evidence that
no reasonable factﬁnder would have found the applicant
guilty of the underlying oﬀense).
    Likewise, here, there is a clear statutory command limiting
courts’ equitable discretion to use the actual innocence gate-
way to excuse failure to comply with § 2255(f)(3). Congress
set a one-year limit for petitioners to bring § 2255 motions
based on new rights recognized by the Supreme Court. Al-
lowing a claim like Burrage to serve as both the basis for actual
No. 16-2381                                                   9

innocence and the basis for relief would render this statute of
limitations superﬂuous, at least as it applies to newly recog-
nized statutory rights. Every time there is a retroactive inter-
pretation of a criminal law, petitioners convicted under it
would have an initial § 2255 claim based on the new interpre-
tation indeﬁnitely.
    We aﬃrm the district court’s decision denying Lund’s
§ 2255 motion as untimely. Lund’s § 2255 motion was conced-
edly untimely and we hold that he cannot use the actual in-
nocence gateway to overcome the statute of limitations in this
case.
