United States v. Isaac Kimber

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-35431
Plaintiff - Appellee, D.C. Nos. 1:11-cv-00078-DWM
1:04-cr-00087-RFC-11
v.
ISAAC NATHAN KIMBER, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
Argued and Submitted January 22, 2015
Billings, Montana
Before: THOMAS, Chief Judge, and HAWKINS and CHRISTEN, Circuit Judges.
Isaac Kimber appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence.1 The district court denied
Kimber’s motion as untimely, ruling that the one-year statute of limitations for §
2255 motions was not tolled because Kimber could not establish that he was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
The parties are familiar with the facts, so we do not recount them here.
actually innocent of possessing firearms in furtherance of a drug trafficking
conspiracy. We have jurisdiction under 28 U.S.C. §§ 2253 and 2255, and we
affirm the district court’s order.
“We review de novo a district court’s decision to deny a motion under 28
U.S.C. § 2255.” United States v. Chacon-Palomares, 208 F.3d 1157, 1158 (9th
Cir. 2000). A one-year statute of limitations applies to § 2255 motions from “the
date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1).
The district court imposed judgment on Kimber in May 2005, and he did not file
his § 2255 motion until July 2011, over six years later.
A claim of actual innocence is a basis for equitable tolling of the statute of
limitations. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). Kimber,
however, cannot toll the statute of limitations based on his alleged actual innocence
because it is not “more likely than not that no reasonable juror would have
convicted him” of Count 23, possession of a firearm in connection with a drug
trafficking offense. Bousley v. United States, 523 U.S. 614, 623 (1998). It is clear
that Count 23 contained a typographical error: it referred to Count 20—the October
2003 possession with intent to distribute charge—rather than Count 22—the
2
December 2003 charge for possession of 4.2 grams of methamphetamine.2
Possessing 4.2 grams of methamphetamine may have been consistent with personal
use, but Kimber also possessed three loaded guns, a digital scale, numerous plastic
baggies, walkie talkies, a “Radio Shack scanner,” and $451 in cash. This evidence
strongly suggests both intent to distribute and a nexus between possession of the
firearms and the drug crime.
Even if Kimber could show that he was actually innocent of Count 23, he
also would be required to demonstrate his actual innocence of the charges the
government agreed to dismiss at the time he entered his plea. Id. at 624. This, he
does not attempt to do.
AFFIRMED.
2
The transcript of the change of plea hearing makes this apparent
because the parties and the district court all proceeded as if Count 23 in fact
referred to Count 22. For instance, the judge asked Kimber if he “possess[ed] with
intent to distribute the 4.2 grams of methamphetamine [he] had when [he was]
arrested in December 2003.” Kimber’s testimony establishes neither he nor his
counsel were confused about the government’s theory, and that he was not
prejudiced by the error in the indictment.
3