United States v. Nazareta

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 13, 2017
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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.
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ORDER
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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
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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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